Water Pik, Inc. v. Med-Systems, Inc.

In attempting to determine trademark infringement, the court used a non-exhaustive six-factor test to evaluate the competing marks.

Both parties to the suit sell products for rising sinus cavities. Med-Systems, Inc., the earlier entrant into the market, sells products under the trademark "SinuCleanse". Water Pik, Inc. registered the trademark "SinuSense", and brought action against Med-Systems, Inc. for a declaratory judgment that "SinuSense" did not infringe on any of Med-Systems' trademarks. The district court, ruling that the "SinuSense" brand was not likely to cause customer confusion, granted judgment to Water Pik, Inc. Med-Systems subsequently appealed the ruling to the 10th Circuit. The court applied a de novo review of all the evidence presented, and utilized a (non-exhaustive) six-factor test in evaluating the two marks: First, in determining whether there was evidence of actual confusion, the court indicated a willingness to consider survey evidence. In this case, however, the survey conducted by Med-Systems was fraught with methodological issues and did not adequately represent the marks at issue. The court also determined that Med-Systems failed to show a likelihood of confusion when they only submitted instances of confusion in the form of a text message, a blog post, an ebay.com advertisement, and a consumer declaration of confusion. Second, in considering the strength of the contesting mark, the court determined that "SinuSense" had weak conceptual strength because the prefix "Sinu-" is generic and is used by third parties. The mark also had weak commerical strength because Med-Systems did not make enough effort to make a "conscious connection" between the mark and the product in the mind of the consumers. Third, in considering the degree of similarity between the competing marks, the court found that although the marks were visually similar, they were not similar in sound and meaning. Fourth, the court considere the intent of the alleged infringer in adopting the contested mark, and found that even though Med-Systems proved that Water Pik intended to copy the product, Med-Systems did not prove that Water Pik intended to copy the mark. Fifth, the court determined that consumers are likely to exercise a higher degree of care in purchasing parties' products, and so weighed that factor in Water Pik's favor. Lastly the court determined that there was similarity of the parties' products and the manner in which they market them because the products are nearly identical and marketed through the same channels. The court concluded that Water Pik's trademark was unlikely to be confused with Med-Systems' products. Therefore, the judgment of the district court was AFFIRMED.