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Guest Commentary: Microsoft makes the Kinect motion controller for Xbox 360, and for a while tried out a mobile phone named Kin. Kinbook makes a Facebook app that is intended to capture and organize family memories. Kinbook discovered Facebook’s overzealous position that it owns the -book suffix, so Kinbook changed its product name to Kinbox. It alleged that Microsoft’s branding of Kinect for the Xbox infringed the Kinbook/Kinbox trademark.

It’s hard to tell how successful the Kinbook app is. Microsoft says it had 14 active users in May 2011. Kinbook claims closer to 17,000. Either way, Kinbook is hardly setting the world on fire. The court explains:

“Kinbook credits the arrival of the Kinect for XBOX 360 and Microsoft’s accompanying marketing blitz with the poor start of its ‘Kinbox’ Facebook application”

Stop right there. How could that be true? Assuming for a moment that “Kinbox” and “Kinect for the Xbox” are so overlapping that they could confuse consumers (a proposition I don’t believe), wouldn’t Microsoft’s massive marketing blitz increase interest in Kinbox’s offerings? So this should have produced a tidal wave of folks looking for Kinbox. Even if some of those users suffer disappointed expectations (they came because they wanted something other than what Kinbook provided), those users will turn over but won’t affect the organic interest in Kinbook. Microsoft’s promotion could only help Kinbook. Passing the blame to Microsoft isn’t very credible.

Instead, the court finds the following:

  • Kinbook has never generated any revenues
  • they intended to build a website and mobile app but never did
  • they intended to spend a quarter-million dollars on marketing but have only invested “a few thousand” dollars instead. Indeed, “Kinbook acknowledges that it has not dedicated any significant time, money, or effort to advertise, promote, or market its marks or services.”

It sounds like any alleged trademark troubles with Microsoft are just the tip of the iceberg. Instead of fixing those core issues with their business, they invested their valuable resources in court proceedings.

The court reaches the entirely sensible conclusion that there’s no likelihood of consumer confusion and tosses the claims. Among other reasons, the court points out multitudinous other users of the “kin” prefix:

“Kincafe,” an online social network for families to connect; “Kin Valley,” a secure online social network for the family; “Kinzin,” an online social publishing service to allow groups to privately share photos; “Kinnect.Us,” an online social networking service to stay connected with family and friends; “Kinector,” an online service to help users stay connected with relatives through a private web site where family can share information; “Connect 2 Kin,” an online service for families to stay in touch and share photos, share documents, schedule events, etc.; “Kindle,” an e-book reader with social networking capabilities; and many others.

The plaintiff admitted that none of these other examples were confusing. Yet, somehow Kinect for the Xbox was. Hmm.

Kinbook also tried to argue that Xbox appeals to 5 year olds, so they should be the paradigmatic “consumer” whose confusion is measured. The court mocks this argument:

No matter what else the ever-remarkable current-day precocious 5 year-old can accomplish, this Court cannot fathom a 5 year-old with either the faculties or the financial means to independently purchase a retail item costing hundreds of dollars. Second, even the hypothetical precocious 5 year-old dispatched by indulgent parents (or grandparents) to make her or his own selections of amusement would likely be able to distinguish between a free software application, and a $150 piece of gaming hardware.

This lawsuit has all the indicia of a small trademark owner trying to squeeze a big company for a nuisance settlement. After all, Microsoft spent $100M promoting Kinect; if Kinbook could get only a 5% taste of the action, that would still be quite tasty.

This ruling reminded me a little of the recent Fancaster ruling, which also involved a trademark plaintiff who hadn’t really invested much in building a business before running to court. In the Fancaster case, there was some evidence that Comcast may have muscled into the plaintiff’s sphere knowing the potential pitfalls, but there’s no hint of that on Microsoft’s part here (the case indicates that Kinbook didn’t show up in Microsoft’s trademark search).

Instead, I’m just left with the suspicion that the plaintiff thought that a low-merit trademark lawsuit would be a faster path to revenues than building a business. If that’s your idea of entrepreneurship, as a LOLcat might say, ur doin it wrong.

Kinbook LLC v. Microsoft Corp., 2012 U.S. Dist. LEXIS 8570 (E.D. Pa. Jan. 25, 2012)

Eric Goldman is an Associate Professor of Law and Director of the High Tech Law Institute at Santa Clara University School of Law.  Before he became a full-time academic in 2002, he practiced Internet law for 8 years in the Silicon Valley. His research and teaching focuses on Internet, IP and marketing law topics, and he blogs on those topics at the Technology & Marketing Law Blog, where this post originally appeared.

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