Tuesday, September 10, 2019
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has upheld a determination that Kia Motors America, Inc. and its South Korea parent did not infringe on the “Drivewise” trademark of Allstate Insurance Company with its own use of “Drive Wise.”
The decision came in a memorandum opinion filed Friday. It was rendered by a three-judge panel comprised of Ninth Circuit Judges Consuelo Callahan and Ryan D. Nelson, joined by visiting Third Circuit Judge D. Michael Fisher.
District Court Judge S. James Otero of the Central District of California was affirmed in his determination that there was no infringement. He found a lack of likelihood of confusion because Allstate’s “Drivewise” was a service while Kia’s “Drive Wise” is a product.
Allstate’s “Drivewise” sends information to the insurer, either through a mobile app or a device installed in the insured’s vehicle, as to such matters as the driver’s hard-braking or driving at excessive speeds. The incentive for participation in the program is the prospect of reduced premiums.
Kia’s “Drive Wise,” utilizing a sensor and camera, warns the driver of potential dangers ahead, such as a potential risk of a collision.
Otero noted that Allstate’s app is free while Kia’s system “costs several thousands of dollars and requires the purchase of a vehicle.”
Friday’s opinion notes:
“Allstate’s Drivewise and Kia’s Drive Wise, are ‘nearly identical,’ which weighs in favor of—but does not mandate—a likelihood of confusion.”
No Clear Error
It went on to say, however, that “products in the same general field are not necessarily closely related…, and the District Court did not clearly err in concluding that differences in hardware and software, features, and price meant that the products were not closely related.”
The opinion goes on to say:
“The District Court weighed five factors in Kia’s favor, two in Allstate’s favor, and one neutrally. Allstate argues that the District Court erred because it ‘tallied’ the factors and then concluded, in one sentence, that ‘[c]onsidering all the factors together, Allstate has failed to meet its burden.’ Allstate is correct that courts do not merely ‘count beans.’…However, we do not require the District Court, after careful consideration of each factor, to explain with particularity how it weighed the factors in relation to one another. That would go beyond the scope of our clear-error review….The District Court committed no legal error and did not clearly err in finding no likelihood of confusion….”
The case is Allstate Insurance Company v. Kia Motors America, Inc., 18-55164.
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