Request for Directed Verdict -- Is "Pods" Generic?

No.

A jury agreed with PODS that U-Haul infringed the "pods" trademark and that U-Haul was unable to prove that the mark was generic.  U-Haul asked for a directed verdict notwithstanding the jury's conclusion and separately asked for a new trial.

The Court noted the narrow lens through which a Rule 50 directed verdict motion is viewed:

A Rule 50 motion should be granted only if the evidence is so overwhelmingly in favor of the moving party that a reasonable jury could not arrive at a contrary result.

(quote omitted).  U-Haul argued that it had presented significant evidence including expert testimony, dictionary definitions, patents, media usage, military usage, industry usage, and PODS' own usage to show that the term "pods" was generic at the time of its trademark registration.  The Court first laid out the test for genericness:

The Lanham Act has codified the test for genericness: the primary significance of the mark to the relevant public.15 U.S.C. § 1064(3); Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1320 (11th Cir. 2012).  The term is generic if the primary significance of the mark is "the term by which the product or service itself is commonly known," a depiction of the product as a whole, rather than a particular feature of the product, or the name of a class of products rather than an individual brand.  Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1358 (11th Cir. 2007) (citations omitted).  The First Circuit has explained: "Rather than answering the question "where do you come from?", a generic term merely explains "what are you?" Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 14 (1st Cir. 2008) (citations omitted).  Genericness is based on the use of a word in its relevant context, not the word itself.  "'[I]vory' is generic of elephant tusks but arbitrary as applied to soap."  Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1183, 1186 (5th Cir. 1980).

The Court then turned to U-Haul's evidence.  The bulk of U-Haul's evidence appeared related to the use of the term "pod" in the aerospace industry (i.e. NASA definitions defining pod as a "streamlined compartment under the wings or fuselage of an airplane used as a container (as for fuel).")  While noting that U-Haul presented a significant amount of evidence, the Court recognized that the jury was entitled to give that evidence whatever weight the jury found appropriate:

The Court's inquiry on a Rule 50 motion based on the sufficiency of evidence is limited to determining "if the evidence is so overwhelmingly in favor of the moving party tht a reasonable jury could not arrive at a contrary verdict." Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1246 (11th Cir. 2007).   It is the jury's role, not the court's, to make credibility determinations and weigh the evidence. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150–151 (2000). As outlined above, U–Haul presented a significant amount of evidence relevant to its affirmative defense of genericness. However, a careful review of the evidence, in light of the relevant legal standards and the jury's role as finder of fact and appraiser of credibility, leads to the conclusion that there is sufficient evidence to support the jury's verdict. See Chambless v.. Louisiana–Pac. Corp.,481 F.3d 1345, 1348 (11th Cir.2007) (denying Rule 50 motion brought by party who bore the burden of proof, where the movant made a prima facie case but there was sufficient evidence to support the jury's verdict); Collado v. UnitedParcel Service, Co., 419 F.3d 1143, 1154 (11th Cir.2005). U– Haul's remaining arguments for overturning the jury's verdict are similarly unavailing.

U-Haul's motion for a new trial failed for the same reasons.

Motion for directed verdict, or alternatively for a new trial, denied.

Pods Enterprises, Inc. v. U-Haul Intern., Inc., Case No. 8:12-cv-1479 (M.D. Fla. Mar. 11, 2015) (J. Whittemore)

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)