The U.S. District Court for the District of Nevada recently granted a motion to dismiss a trademark infringement lawsuit involving dueling ‘P'-shaped logos in 46 Labs LLC v. Parler LLC, No. 21-cv-01006-CDS-DJA (D. Nev. Jul. 27, 2022). The logos were similar, but the services were different.

The Marks

46 Labs LLC owns a trademark registration for a “P” logo (U.S. Reg. No. 4,790,688) in connection with communication user interface called “Peeredge.” The mark “consists of a stylized letter ‘P' composed of a semicircle with and [sic] extended straight line forming the body of the ‘P' and a curved line that starts in the semicircle and extends downward to form the leg of the ‘P'.” Id. The mark is registered as a service mark for “cloud computing featuring software for use in the management of telecommunications including switching, management of call data, telecommunications systems and telecommunications business functions…” Id.

The conservative social media platform, Parler, used a logo consisting of a red stylized ‘P' that looked nearly identical to the Peeredge ‘P' mark (although it appears that Parler has since made some significant changes to its logo that are not addressed in the court's decision which was based solely on the facts alleged in the complaint).

After customers contacted 46 Labs based on their confusion that 46 Labs was responsible for or affiliated with Parler, 46 Labs sued Parler for trademark infringement, false association, and unfair competition.

The Decision

The court found the marks looked “nearly identical” except for their respective colors, but found no evidence that Parler competes within the same industry, or provides similar goods or services, as 46 Labs.

There are no allegations in 46 Labs' complaint that the same group of purchasers use both Peeredge and Parler, nor that Peeredge and Parler are similar in use or function, nor that the buying public would reasonably think that goods or services provided by Parler come instead from 46 Labs. Plaintiff's allegation that “customers of 46 Labs contacted 46 Labs based on their confusion that 46 Labs was responsible for or affiliated with Parler” is an unsupported assertion of an element of trademark infringement. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

46 Labs provides a paid service for “businesses with a need for sophisticated telecommunications infrastructure,” while Parler's platform is free-of-cost for “the general audience of social media consumers; that is, the general public.” Furthermore, the services are also “marketed very differently.” Parler is available on phone and computer app stores, while Peeredge is available only to 46 Labs' clients.

Peeredge is an infrastructure system that allows companies to place phone calls. Parler, by contrast, is a social media site/platform wherein users may communicate with other users. Peeredge and Parler have very different users.

***

Plaintiff's attempt to throw both technology companies into a general “communications” bucket are unpersuasive. ECF No. 18. The difference between the services offered by the parties, uncontroverted by Plaintiff's allegations, is the difference between an individual freely posting on social media compared to a corporate entity purchasing an expensive telecommunications interface.

Accordingly, 46 Labs “fails to link the services provided by its own Peeredge platform to the services provided by Parler.” The court concluded that “46 Labs has not alleged with sufficient specificity that Peeredge and Parler's services are similar enough to potentially cause consumer confusion, nor has 46 Labs alleged that Parler's use of the stylized ‘P' is likely to cause consumer confusion.” Parler's motion to dismiss was granted, but 46 Labs was granted leave to amend their complaint to allege factual specificity that cures the deficiencies of their pleading.

More specific details about the alleged actual confusion of 46 Labs's customers might be sufficient to cure the deficiencies identified by the court.

Thomas P. Howard, LLC litigates trademark cases nationwide including in Colorado.