Thursday, June 26, 2014

Is "Pods" generic for promoting self storage goods and services?

We'll have to let the experts opine on that question.  U-Haul is using the words "pod" and "pods" on its website to attract web traffic.  PODS Enterprises, Inc. ("PEI") owns a number of federal trademark registrations for PODS (and associated designs).  See Registration Nos. 2,365,848, 3,011,459, 3,666,828, and 3,689,446.  PEI sued U-Haul for trademark infringement.  (U-Haul has sought cancellation of the four registrations).

In its defense in the litigation, U-Haul is arguing that "pods" is generic for portable containers used in transportation and storage of goods.  (As you'll likely recall, generic trademarks are no trademarks at all.  The test generally followed is the primary significance test; i.e. what is the primary significance of the mark in question in the minds of the consuming public -- to identify the goods or the producer of the goods?  If it identifies the goods, the mark is generic.  If its primary significance is to identify the producer, the mark is not generic.)  The most widely used survey to resolve genericness issues is known as a Teflon survey:
A Teflon survey first establishes whether the respondent grasps the distinction between comon names (airline or automobile) and brand names (American Airlines or Chevrolet), and then asks the respondent to categorize a number of terms as common or brand...
See also E.T. Browne Drug Co. v. Cococare Prods., Inc., 538 F.3d 185, 195 (3d Cir. 2008).   Here, U-Haul's expert designed a Teflon survey "to determine whether U.S. consumers who are likely to use moving and storage services understand the principal or primary significance of the terms 'pods' and 'pod' in the context of moving and storage to be a brand or proprietary name or, alternatively, to be a common or generic name."

The expert testified that the relevant consuming public was those people "likely to use moving and storage services."  But the survey (of 694 respondents) was only conducted on people who had actually  moved in the past few years or those that were expecting to move within the next year.  PEI believed the survey methodology was flawed for 2 reasons.  First, it included too few people because it did not include people who were likely to use storage services over the next year (it only included those likely to move over the next year).  Second, the survey included too many people because it included respondents who intended to move without using a moving or storage company.  PEI challenged the expert's methodology as flawed, and called on the Court as gatekeeper to exclude the expert under Daubert.

The Court dispensed with the motion quickly:
The general reliability of Teflon surveys cannot be questioned, given their wide acceptance.  See In re DaimlerChrysler AG, Serial No. 74/734,869 (TTAB July 26, 001) ("The so-called ‘Teflon survey’ is widely accepted in determining whether a term is generic.”); Anheuser–Busch Inc. v. Stroh BreweryCo., 750 F.2d 631, 639 (8th Cir.1984) (characterizing a Teflon survey as “properly conducted”); Invisible Fence, Inc. v. Fido ‘s Fence, Inc., No.3:09–CV–25, 2013 WL 6191634 (E.D.Tenn. Nov.26, 2013) (accepting a survey that “generally” complies with Teflon ). Rather, PEI perceives multiple technical deficiencies in Dr. Wood's survey, including an improper universe of respondents and improper questioning.
Such technical deficiencies go to the weight of Dr. Wood's opinions, not their admissibility.
Motion to Exclude Expert, Denied.
Pods Enterprises, Inc. v. U-Haul International, Inc., Case No. 8:12-cv-1479 (M.D. Fla. June 12, 2014) (J. Whittemore)

4 comments:

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