Hearthware Inc. v. E. Mishan & Sons Inc.

If an allegedly infringing product owner does not make a literal lie in advertising the product, then there must be a showing of a likelihood of confusion.

Hearthware Inc. (Hearthware), creator of the NuWave Oven, had an infomercial aired in 2008 detailing the practical benefits of owning a NuWave oven in the typical enthusiastic infomercial style. The device had been trademarked and copyrighted properly. Mishan & Sons Inc. (Mishan) created the Super Wave oven, a similar product also advertised by infomercial in 2010. The infomercials featured similar locations, and similar demonstrative mannerisms. Hearthware claimed that the similar name and infomercial were intentionally made to confuse consumers into conflating the two products. The court looked to a variety of factors to determine if Mishan’s presentment of the Super Wave Oven was misleading. The court highlighted that the Super Wave oven was branded as a Sharper Image product after creation. Hearthware claimed that two of the statements relating to the Sharper Image brand in the infomercial were actually false. First, the ad gave the impression that the guaranty was through the Sharper Image, which it was not; and second, the ad suggested that the Sharper Image designed the Super Wave. The court found that these statements were not literal lies, meaning that it was necessary to show that the statements would actually mislead customers. Mishan provided a consumer survey that showed these claims had minimal effects on consumers, meeting the burden of proof. The Court found the similarities between the infomercials and logos were natural given the product and advertising method. The court GRANTED summary judgment in favor of Mishan.