Hearthware, Inc. v. E. Mishan & Sons, Inc., No. 11 C 5233, Slip Op. (N.D. Ill. Aug. 10, 2012) (Nolan, J.).
Judge Nolan granted defendant E. Mishan & Sons (“EMS”) motion for summary judgment on plaintiff Hearthware’s copyright, Lanham Act and related state law claims related to EMS’s alleged copying of Hearthware’s Nu Wave halogen oven and its related trademarks and infomercial. As an initial matter, the parties both failed to comply with the Local Rule 56.1 requirements for statements of fact and responses thereto, largely by failing to sufficiently support statements with citation to evidence.
While there were many similarities between the parties’ infomercials – two hosts hugging when they met, a chef knocking frozen food against a counter, and time–lapse photography of food cooking in the oven – for each allegedly copied element EMS offered proof of many infomercials before Hearthware’s that had the same elements. So, to the extent there was copying or at least similarity, those commonalities were unprotectable scenes a faire. And “threadbare” allegations of direct copying could not save the claim.
There was no likelihood of confusion between Hearthware’s NUWAVE and EMS’s SUPER WAVE marks. While both marks contain the term “wave” the marks are presented “entirely” differently. For example, EMS focuses upon its connection to Sharper Image. The similarities of the products – both halogen ovens – favored confusion, as did the fact that both parties sell their products nationally in similar locations. Neither party addressed the degree of care exercised by consumers. Hearthware’s mark was not strong in light of the sixteen other non-halogen ovens that have registered a mark with “wave” in it. There was no evidence of actual confusion. There was also no evidence that EMS was attempting to palm off its product as Hearthware’s. Balancing the factors, the Court held that any finding of likelihood of confusion would be improperly based upon conjecture. There was, therefore, no likelihood of confusion.
Without likelihood of confusion, summary judgment was warranted on all of Hearthware’s Lanham Act and related state law claims.