Clarus Transphase Scientific, Inc. v. Q-Ray, Inc., No. 06 C 4634, 2006 WL 4013750 (N.D. Ill. Oct. 6, 2006) (Cole, Mag. J.).

Magistrate Judge Cole denied plaintiff’s motion for a preliminary injunction holding that plaintiff had not demonstrated a likelihood of success on its trademark, trade dress and copyright infringement claims.  Plaintiff marketed and sold pendants incorporating its "Sympathetic Resonance Technology" which it claimed enhanced the human biofield under its "Q-Link" mark.  Defendants sold a line of pendants and bracelets under the "Q-Ray" mark which they claim are "bio-magnetic ionized" which they claim enhance a person’s overall well-being.  The Court held that there was no likelihood of success on the trademark infringement claims because the three most important likelihood of confusion factors — the similarity of the marks, defendants’ intent and evidence of actual confusion — all favored defendants.  The marks, "Q-Link" and "Q-Ray" share only one letter, "Q," and a hyphen and use substantially different fonts, making even the Q’s employed in each mark look different.  Plaintiff’s actual confusion evidence consisted of a declaration from plaintiff’s employee stating that she had added a Professional Golfers Association ("PGA") trade show at which "a number of attendees" were confused as to whether plaintiff sold the "Q-Ray" pendants.  The Court noted that the number of attendees that stated there confusion could have been as low as two.  As a result, the Court could not find a likelihood of success on the issue of actual confusion. 

The Court also held that plaintiff had not shown sufficient likelihood of success on its trade dress infringement claim.  The trade dress claim went to a coiled piece of metal arranged in each of plaintiff’s pendants.  Plaintiff explained the coil as an "amplifying antenna," but distinguished the coil as non-functional because the antenna could be made into any number of shapes, it was not necessary that it be in a coil to operate.  Among other reasons, the Court held that plaintiff had only provided attorney argument, not any evidence, of sales or advertising to prove that the coil had generated secondary meaning.

Finally, the Court held that plaintiff had not shown sufficient likelihood of success on its copyright infringement claim because plaintiff stated that its pendants were designed by an international design team, but provided no evidence or basis for determining that the design team worked for plaintiff, that the team’s work constituted a work for hire owned by plaintiff or that the team had assigned plaintiff its rights in the team’s work.

Practice tip:  When you make factual arguments in briefs, particularly regarding interim injunctive relief, make sure that you support the attorney argument which includes the facts with actual evidentiary support for the facts.  This is a simple step that attorneys often forget, assuming perhaps reasonably that the Court will rely on counsel’s truth and veracity as an officer of the Court, and which can cause substantial problems for the parties.