text:
The Estee Lauder Companies Boutique Manager - Le Labo - Toronto, ON in Toronto, Ontario
Boutique Manager - Le Labo - Toronto, ON
Brand: Le Labo
As a Boutique Manager you
are a brand ambassador who take pride in carrying the company value of man-made
approach and mindfulness. Your main mission is to build a strong and
healthy business leading your team into fostering the brand culture of
craftsmanship and unique in-store experiences. (Position based in Toronto, Ontario. Reports to the Le Labo Account Executive in NYC).
Business Planning (Executes with Excellence and Demonstrates LearningAgility )
- Responsible
for achieving monthly and yearly business plans (sales goals) and customer
services targets.
- Local
(consumer transactions/demographic profiles, competitor activity) to drive
granular growth through local relevance
- Effective
setting, tracking performance against target throughout the day, week and month
to ensure a timely action plan to
address any sales deficit
- Responsible
for tracking and sharing the store's monthly accounting: monitor the stores expenses etc.
- Optimizes
staff scheduling in line with
fluctuating customer traffic ensuring relevance to local consumer base
- Collaborates
with corporate business partners in NY ( field executives, Head Office)
to ensure regular business updates
- Managing
additional projects as needed (wholesale orders, corporate orders, events…)
Leadership andDevelopment (Develops Talent & Capabilities, Aligns & Engages the Teamin the Vision)
- Recruits
new team members with the skills and behaviours required to achieve sales and customer
service targets
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time effectively , establishes
priorities and delegates effectively to meet goals and objectives
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formal/informal meetings with each team member to discuss and provide coaching
on performance goals, opportunities, challenges and development needs
- Plans
and executes daily, weekly and monthly briefings with the team to cover brand
updates, performance to goals, consumer insights, competitor activity, beauty
industry trends and news; Maintain updated training documents for the team
- Recognizes
and celebrates success
- Creates
and maintains an environment of open and positive communication,
professionalism and creativity at all times
- Performs
thorough and timely staff reviews and initiates increases, promotions,
disciplinary action and terminations, as directed, with Area
Manager and
Human Resources approval
- Adopts
an open and honest approach emphasizing fairness and integrity
- Responsible
for all In Store Operational Duties: Ensures the workplace environment is
maintained (house keeping duties, cleanliness,
restocking products, opening and closing duties); Merchandise the store;
Reports any maintenance need to the store operations team in NY
- Follows
operational policies and procedures to ensure that the
store achieves organizational and administrative excellence at
all times
Customer Service (BuildsCollaborative Relationships)
- Ensures a welcoming environment for the clients
in the store
and genuinely connects with clients with the intention of building a strong
- Shares
beauty of our craft, the knowledge on the art of fine perfumery, the brand and
the collection
Compound perfumes, labeling, and boxing the products
personalized service
the client
in line
with their
to increase customer loyalty
Minimum Grade 12
College Degree preferred
Job Related Skills
- Previous
retail experience in luxury an asset
- Entrepreneurial
mindset: A Driver, 'Doer' and Go-Getter who is
motivated by the challenge of launching the 1st Le Labo Free-Standing Store in Canada
- Passionate:
strong care and pride in crafting every creation for the clients, fresh from scratch; Connects
with the brand's aesthetic,
mission and unique culture/DNA. Takes pride in sharing the beauty of our craft.
- High energy, positive and optimistic
- Strong attention to detail,
self-motivated and strong work ethic
- Leadership:
ability to effectively plan and execute strategies with the team
- Creative
and innovative thinker with strong
organizational skills
- Communication
skills: excellent written, verbal & interpersonal skills , Excel, PowerPoint proficient
- Ability
to work evenings and weekend with a prestige client base
Job: Retail - Store
Primary Location: Americas-CA-ON-Toronto
Job Type: Standard
Schedule: Full-time
Job Number: 165134


text:
Portal:Military of Australia/Nominate/Selected anniversaries
From Wikipedia, the free encyclopedia
How to suggest/vote for Selected anniversaries for the Military of Australia Portal[edit]
This page is for proposing a Military of Australia Selected anniversaries or commenting on current proposals made on this page. Please do not use this page to comment on a Selected anniversaries or anything else, as it is already featured! If there really is a problem with the Portal, use the talk page instead.
- Add the suggestion at the bottom of this page, using the formatting, please specify the date for the Selected anniversaries:
=== <Example> === {{Portal:Military of Australia/Nominate/Selected anniversaries/<Example>}} *Support - (reason) - (signed)
- To support or oppose a nomination, use the following formatting under the anniversaries headline below:
*Support - (reason) - (signed) *Oppose

subset: commoncrawl


text: Guys chill out about the camera not being there/ might come in October/ whining about there not being one. Stop all the non-scence threads, for real. If there is a NEW rumor post it but if its old news, c'mon... Its kinda ironic that I'm posting this. SEARCH BEFORE YOU POST!!!


text:
ShorePower Technologies originated from the TSE (Truck Stop Electrification) pilot project launched by the state of New York with the support of the New York State Energy Research and Development Authority. ShorePower's EV charging infrastructure are focused on connecting high traffic truck stop/parking spaces to the electrical grid.
Watch the launch of ShorePower EV Level 2 charging station in December 2010 in the video below:
All ShorePower EV charging stations are optimized for parking area use with backlit outlets and weather-resistant stainless steel frame. ShorePower EV charging stations are capable of charging up to four vehicles via its Level 1 standard 120V 20A outlets featuring NEMA 5-20R rating. ShorePower stations are upgradeable to Level 2 chargers with SAE J1772 cable. The company offers energy and time monitoring, remote on/off control, payment options, and automatic evening globe lighting.
ShorePower EV charging stations are available in Wall Charger and Pedestal Charger Units:
- Wall Charger Station – 40 lbs., 20 in. tall x 16 in. wide x 9 in. deep.
- Pedestal Charger Station – approximately 100 lbs., 87 in. tall x 18 in. wide x 10.5 in. deep.
The charging stations provide 208 to 240 V at 60A power service, with 100A required for future upgrade. Non-utility grade metering is available for any unit with utility metering outfitting options. Payment systems are available through industrial outdoor card reader to accept major credit/ debit cards. Other proprietary cards such as fleet and employee cards are also acceptable.
Other optional features include Web-based reporting and monitoring system on energy consumption, access log, billing, etc. ShorePower EV charging stations can connect to the ShorePower network via wireless, cellular, and Ethernet connectivity. Check out the full technical specifications of Shorepower EV charging stations here.
For more information about owner and truck fleet advantages that ShorePower offers, visit here.


text:
- The self-adjusting cleaner head allows you to keep moving from hard floors to carpet without having to stop for adjustments. The cleaner head moves independently to do the adjusting for you without you even noticing.
Ball Technology
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The problem with dust
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text:
Is it ever too late to admit a mistake? Evidently there is no statute of limitations for the New York Times. After the movie, "12 Years a Slave," won an Academy Award readers began researching the Author and the original book from over 100 years ago. In the story about the author's work published in the Jan. 20, 1853 edition, the author's name was misspelled. In the March 4, 2014 edition of the paper, they published a correction.
As long as we are living it is never too late to confess our sin before God. Just as we confess our sins, He will be faithful to forgive us, and cleanse us from all unrighteousness. --Jim L. Wilson and Rodger Russell.
World, April 5, 2014 p.23
1 John 1:9 (HCSB) (9) If we confess our sins, He is faithful and righteous to forgive us our sins and to cleanse us from all unrighteousness.


text:
|16 Avaliações
|Tipo de imóvel
|Estadia Mínima
|7 noites
Entre as milhas de praias tranquilas ao longo litoral lindo safira de SW Florida, o seu tesouro gulfview aguarda. Nos lindos Castaways Condominiums, Unidade 22D é aproveitar ao máximo!
Este, recentemente atualizado, condomínio ensolarado brilhante com 4 Golfo do México a partir de pontos de vista diferentes e 2 decks com vista para a piscina vai tirar o fôlego. Os altos tectos abobadados, as espaçosas áreas de estar acomodar confortavelmente até 6 pessoas.
Saia para o seu terraço privado para desfrutar do-sol espetacular. Apenas fora de sua porta é a piscina eo caminho para as milhas de pó intocada praias de areia branca.
Certifique-se de prestar atenção para violar golfinho, subindo águias, osprey, pelicanos mergulho e gaivotas como você passear beira do oceano. Como você olhar para baixo, conchas do mar coloridos e dentes de tubarões são a certeza de chamar sua atenção. Eles são abundantes! Como você beachcomb, não se esqueça de prestar atenção para um dólar de areia ocasional também! Sinta-se livre para trazer o seu café para fazer parte da aula de ioga de manhã na praia. Não há nenhum custo e este grupo se reúne 7 dias por semana, o ano ao redor!
Este recém-atualizado e bem decorados condomínio dispõe de um quarto principal com uma cama queen size e banheiro privativo. O segundo quarto tem duas camas de solteiro. Ambos os quartos estão equipados com TVs de tela plana com controles remotos e novos ventiladores de teto com controle remoto com várias configurações para o seu conforto. Ambos os banhos foram recentemente renovados e apresentam bancadas em granito. Os novos mobiliário criar um clima caribenho e se completam com Caribe Joe e Tommy Bahama acentos. Além disso, há um totalmente mobiliado, recém-renovado, cozinha com bancada em Blue Diamond quartzo e um Keurig. Este condomínio tem uma área de jantar separada e uma ampla sala de estar com um sofá-cama queen size.
Por favor, venha experimentar este tesouro para si mesmo. Relaxe; desfrutar de uma margarita no seu terraço privado, na piscina ou na praia. Temos certeza que você vai voltar uma e outra vez, e vai achar que tudo neste paraíso praia permanece atemporal.
Great Condo..... We spent 3 wonderful weeks with family. We booked 2 weeks but really wasn't ready to come home. We were able to book another week. It is very well equipped with everything you need. We loved how it overlooked the pool (which seemed like a private one). We spent every day on the beautiful beach and evenings in the pool. My grandkids loved it. Ages 7 & 5. They loved riding the boogie boards (provided by condo). If you like shelling & shark teeth hunting.....it's paradise. We found plenty and my son found a huge one. This was our first time staying on the Gulf side since we are only 3 hours from Atlantic Beaches. The Sunsets are absolutely breathtaking. We were use to seeing sunrises on our beaches. We visited several other beaches like Siesta Keys (pretty sandy beach but way too crowded) We also, went to Blind Pass Beach which is also on the Manasota Key Island. The memories we made will last a Lifetime. We will definitely be returning. Although a 12 1/2 hour drive for us, we still loved it. Maybe fly down next time. The stairs was rough for me since I have bad knees but family took care of that. I made one trip down and they carried everything. :) can't say enough about how awesome this condo is. Thank you Karen for sharing your condo with us.
Had a great play/work girl's getaway ! Loved the condo ; comfy, clean, nicely appointed with a great deck and ocean view . A nice beach for walking , swimming , sunning and shelling . Looking forward to visiting again !
Condo was ok. Smaller than anticipated. Nicely decorated and had a lovely porch facing the gulf. However, it was not very clean. Stove was very dirty. Had to clean it before I felt comfortable cooking on it. Second bathroom is extremely small and owner accused us of breaking toilet seat which we did not do. Deducted $40.00 from security deposit for repair. Don't know how or when it got broken, but even if it was, I would consider that wear and tear. Most of us have to replace a toilet seat now and then
My family and I had the perfect vacation at the Castaways. From the very beginning, the owner (Karen), was a pleasure to talk to. She ensured our reservation and all of our questions were answered the same day we made our first inquiry. When we arrived, the condo was just as described. It was clean, spacious and decorated nicely. I guess what I am trying to say is that you felt like you were on vacation in a friend or families beach house…. (Not in a sterile rental property). The only issue during the stay was that a past tenant had lost the bottom portion of the condos beach umbrella. I notified Karen via text, and she had a brand new umbrella waiting for us when we got up the next morning! The area is beautiful and there are plenty of places to eat and pick up things within easy walking distance. The beach was excellent. Not crowded at all. We saw a few sea turtles at night and plenty of shark teeth were found. I think the final count was 700 + shark teeth fossils found. About ½ were found sifting through sea shells and the other half snorkeling right off the beach. We will definitely be back and highly recommend this condo.
I was very disappointed with this condo. I asked for beachfront and this condo is located as far away from the beach as possible! The complex is beachfront but not this unit. It is actually on the road, and at night you can hear road traffic! Once you get to the beach it is nice, but once again it is not close to the beach. I feel the cost of the condo is not appropriate for the location, I was paying for beachfront and did not get what I was paying for.
GREAT beach right there for shelling and swimming. Just an hour or so to Sarasota and Ft.Meyers for shopping.Adorable condo sleeps 6 comfortably and overlooks the the swimming pool. Laundry room on premises AND walking distance to several restaurants.
Aluguel de barcos, Jet Ski, Deep Sea Fishing Charters, Mergulho, Praia de classe Yoga (gratuito), Parapente, Ciclismo, Praia Casamentos, Dolphin Watch Tours, Sunset Dinner Tours, parasailing, aluguel de bicicletas, Campos de golfe (5), a formação da Primavera basebol, Palm Island Ferry, restaurantes e lojas a uma curta distância, santuário da vida selvagem com os trajetos, animais selvagens, pesca, surf, milhas de praias de areia branca, descasque, toothing tubarão, Stump Pass State Park, Venice Beach, Sarasota (30 minutos) - St Armands comercial do círculo e Siesta Key, Sarasota Jungle Gardens, jardins Selby Botanical, parque Myakka River State, Tampa (90 milhas) Busch Gardens, Tampa Bay Acquarium, Adventure Island, Orlando (150 milhas) Estúdios Universal, Sea World, Walt Disney World / Epcot / MGM Studios, Mineral Springs
|Validade da Tarifa
|por noite
|Noite (fim de semana)
|por semana
|por mês *
|Pacote ou Evento
Summer 2016
mai 1 2016 - dez 31 2016
Estadia mínima: 7 noite(s)
January 2017
jan 1 2017 - jan 31 2017
Estadia mínima: 7 noite(s)
Winter 2017
fev 1 2017 - abr 30 2017
Estadia mínima: 7 noite(s)
Summer 2017
mai 1 2017 - dez 31 2017
Estadia mínima: 7 noite(s)
Memoral Day Holiday
mai 27 2017 - jun 2 2017
Estadia mínima: 7 noite(s)
Taxa Única
July 4th holiday
jul 1 2017 - jul 7 2017
Estadia mínima: 7 noite(s)
Taxa Única
Labor Day Holiday
set 2 2017 - set 8 2017
Estadia mínima: 7 noite(s)
Taxa Única
Rates are subject to change until reservation is confirmed. Housekeeping fee is $82.00 for any stay less than a week. Rate is based on 4 people. Additional fee per person is $10 per night. Maximum occupancy for this condo is 6 people. The condo is non-smoking and no pets are allowed. Minimum stay is 7 nights in all seasons. Anything less than a week stay requires owners written approval. Please note: The weeks including Memorial day, 4th of July and Labor day have different rates from the seasonal rates, and are so noted.
* Tarifa mensal aproximada. O valor real dependerá dos dias em que você de fato se hospedar no imóvel.


text:
- Yarn of your choice in 2 colors of your choice. I used an acrylic worsted weight yarn
- US Size 7 (4.5 mm) DPNs or straight needles and US Size 8 (5 mm) DPNs or straight needles. I knitted these flat and then sewed them up, so I used straight needles. If you want to avoid sewing, use DPNs and knit in the round
- Tapestry Needle
Come See Where I've Linked up!
Cherished Bliss and Bacon Time with the Hungry Hungry Hypo and Making the World Cuter and Sugar Bee Crafts and Today's Creative Blog and Mommy by day Crafter by night and Home Stories A 2 Z and Tip Junkie and Sumo's Sweet Stuff and Brassy Apple and Pincushion Creations and Crafty Cousins and The DIY Dreamer and The Kurtz Corner and Not Just a Housewife and Ginger Snap Crafts and Every Creative Endeavor and House of Hepworths and Somewhat Simple and Fireflies and Jellybeans and Someday Crafts and Creations by Kara


text:
We specialise in promotional merchandise, corporate gifts and clothing. If you are looking to put your name or message on something, the answer is probably yes we can! If it exists, we can find it. If it doesn't, we can make it
THIS IS US.... Brimming with ideas, we are committed to getting it right. It is not just a question of selecting the right product, but ensuring that it upholds your brand values and delivers your message with the right impact. Colour and style are every bit as important as what is printed


text:
16 Howren Terrace Greenvale VIC 3059
Email Agent
MODERN FAMILY HOME16 Howren Terrace, Greenvale
Do you need a home large enough to cater for the whole family?
Do you want something near new with all the hard work done?
Welcome to 16 Howren Terrace Greenvale!
In what's becoming one of Greenvale's most popular locations, being offered is this family home boasting both character and style on a fully landscaped allotment, with a modern and sophisticated decor flowing throughout this generously proportioned home.
There are many unique features throughout the home you will enjoy, such as an exceptionally well planed and expansive living zone, a modern light filled and stone finished kitchen with S/S appliances, three great sized bedrooms with plush carpets and built in robes, the master with a modern ensuite and WIR, a study, a luxurious main bathroom, heating/cooling, a secure remote garage with internal access and a large rear yard with plenty of room for the kids to run around.
Favoured by location with the added convenience of highly regarded schools and sporting clubs in close proximity, Greenvale shopping centre a stones throw and the only minutes away form Melbourne Airport and freeways that lead you anywhere in Victoria. This property is arguably positioned in a great location and accommodates for all.
Note; currently rented for $370pw
Keep it rented or move in and become a resident of the prestigious Greenvale Gardens
Inspection Times
- No inspections scheduled
- Contact Agent
Key Features
- Air Conditioning
- Built-in Wardrobes
- Dishwasher
- Ducted Heating
- Fully Fenced
- Outdoor Entertainment
- Remote Garage
- Split System Air Conditioning
- Study
- Ensuites
- 1
- Toilets
- 2 Virtual Tour: Click to view
Email this agent
Email sent successfully!
Your email has been sent.
Would you like to get The Real Estate Conversation?
Barry Plant Gladstone Park
Gladstone Park VIC, 3043
Agent Information
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Greenvale real estate
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Real Estate For Sale in Greenvale, VIC 3059 priced between $320,000 and $590,000


text:
Check in from 13h / Check out prior to 11h
Gastehaus Reblaube: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Spiez, Switzerland.
Gastehaus Reblaube provides a comfortable setting while in Spiez and is close to everything the area has to offer. It is also found within a five-minute walk of the Spiez Castle.
Hotel description
The guest house has cosy rooms, furnished to fit the needs of any guest.
Gästehaus Reblaube Spiez is within walking distance of Spiez Railway Station, connecting guests with the surrounding area. Bern-Belp Airport is a 30-minute drive away.
Hotel features
Availability and Prices
Booking Site
Room Type
Per room
Per night
Per night
Users who viewed Gastehaus Reblaube also viewed these 3 stars Spiez hotels:
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am Thunersee Gwatt, Spiez
am Thunersee Gwatt, Spiez
Strandhotel Seeblick
Interlakenstrasse 81, Spiez
Interlakenstrasse 81, Spiez
Hotel-Restaurant Seegarten-Marina
Schachenstrasse 3, Spiez
Schachenstrasse 3, Spiez
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text:
>> Guest Reviews & RatingsPrint this page
Hotel City Palace
Pech Area, Bhilwara, Rajasthan - 311 001
Starting from Rs. 1,854
Choose Dates
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Hotel City Palace, Bhilwara - Guest Reviews & Ratings
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Two Wildflowers Species Blossoming Eklutna Flats Alaska
During the spring, two vibrant colored species of wildflowers adorn the landscape of the Eklutna Flats in Alaska, USA. Blossoming in pink and purples hues is an Iris and a Shooting Star.
The bright green background of the tall grasses growing in the tidal influenced wetlands in the...
Eklutna Flats Alaska Wildflowers Iris And Shooting Star
The Iris and Shooting Star are two types of wildflowers which bloom during the Spring across the Eklutna Flats in Alaska, USA.
On the tidal influenced wetlands of the Eklutna Flats in Alaska, USA, various species of...


text:
This item sold on May 16, 2012.
This little hand built vessel in porcelain with an embossed mesh pattern on the sides, plain fore and aft. Glazed in a translucent pale greenish clear, its handle has a kiss of copper red on it from the firing. It stands on four little feet about 5" tall x 7" handle to spout x 2.75" wide and holds about 1.75 cups of liquid, hot or cold, sweet or savory.
Soy Sauce Pot --Mesh
- Materials: clay, porcelain, glaze
- Ships from United States to select countries.
- Feedback: 93 reviews
- Favorited by: 25 people
- Listed on Feb 20, 2012
- 638 views
- 25 favorites


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Event: Celebs at SANKAT CITY Premiere held at PVR, Juhu, Mumbai.
Guest List: Rimi Sen, Kay Kay Menon, Rahul Dev, Rachana Shah, Makrand Deshpande, Naveen Prabhakar, Chunky Pandey, Anupam Kher, Yashpal Sharma
Venue: PVR, Juhu, Mumbai.
Date: 08-Jul-2009
Bollywood celebss Varun Dhawan, Sonakshi Sinha, Arjun Kapoor were snapped at Ravi Chopra's house.
Sexy Bollywood actress Sonam Kapoor was snapped at the airport.
Bollywood actress Sonakshi Sinha was snapped at the airport.
Bollywood celebs Ajay Devgn, Arjun Kapoor, Farhan Akhtar, Vishal Dadlani, Shekhar Ravijani, Raj Kundra, Mahesh Bhatt, Sapna Pabbi among others were snapped at the airport.
Bollywood director Farhan Akhtar was snapped at Shankar Mahadevan's studio.


text:
Tula's Carne Guisada
Beef Stroganoff
Most of this is a judgement call. If you like it thicker, add more noodles, if you like it thinner, then add more liquid. I've tweaked it several...
Kayla's Enchilada Casserole
Turkey + mozzarella = Kayla's Enchiladas! With this meal, your family will be begging for more! Not only easy to make, but a tummy filler for sure! Used...
Easy Italian Beef
Easy Italian Beef
Leave it to Aunt Tula to whip up this scrumptious dish served in burritos.
- 2 to 3 Pounds stew meat
- 1 onion, cut into large chunks
- 1/2 bell pepper, chunked (ore more if you like bell pepper)
- 2 or 3 cloves garlic, minced
- Flour for dredging meat
- 1 to 2 Cans beef broth
- 3 to 4 Tablespoons carne guisada seasoning
Step One
Dredge meat, onion, pepper, and garlic in flour until well coated. Place them all in a 6-quart slow cooker.
Step Two
Mix 1 can of broth and carne guisada seasoning; pour over meat mixture. Add second can of broth, if needed. (Meat should be barely covered.)
Step Three
Cook on LOW for 7 to 10 hours.
Step Four
Stir at 7 hours to make sure the meat is not stuck together. (Tula cooks hers for 10 hours to get it really tender.)
Step Five
Serve with refried beans on flour tortillas, or dice about 4 potatoes, place in cooker with all other ingredients, and eat like a stew.
Leave a Review
You must be logged in to post a comment.


text:
Asked by wmbeener at 10:47 PM on Jul. 10, 2011 in Crazy for CreditsLevel 30 (44,438 Credits)
Answer by Alisim at 10:09 AM on Jul. 11, 2011
Answer by GlitteribonMom at 12:59 PM on Jul. 11, 2011
Next question in Crazy for Credits
This isnt really a question
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What book are you reading right now? What is your favorite book?
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text:
11-13-2009, 07:12 AM #1Junior Guru
- Join Date
- Oct 2004
- Posts
- 233
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"You can go straight to the source. I'm a preacher, but I'm not better than you. I don't know God better than you. I'm not closer to God than you. I just have a different title. You have every right, where you are right now, to turn and talk to God for yourself. And that's what I love about Jesus." Link
Justin Bieber gives us the scoop on how he rediscovered his faith in this video interview. relm.ag/8d3QXsz
The counter-protestors sang "Amazing Grace" throughout the event. Link
Justin Bieber talks about how he rediscovered his faith in this interview with radio host Zach Sang. relm.ag/8d3QXsz
The sheriff said, "If these individuals who have made this leap of faith want to take this step, I think it's only befitting that we have ministers from the community that want to assist us for these individuals." Link
Here's Jimmy Fallon and Justin Bieber in a modern-day interpretation of greeting one another with a holy kiss. relm.ag/q6VtMkz


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NORWOOD – Four goals by TJ Sakaluk and three more by Darryl Smith carried Dundas Real McCoys to a resounding 14-5 victory over Norwood Vipers in the final game of the 2011-12 Allan Cup Hockey League campaign last Sunday (Feb.26) in the Asphode-Norwood Community Centre.
Two nights earlier, Brantford Blast led by Brad Jones, with two goals and an assist, ended the Dundas Real McCoys home-game winning steak at eight games with a 9-5 victory on Kids Night in the JL Grightmire Arena.
Prior to the game, Ontario Hockey Association president Brent Ladds presented Dundas Real McCoys president and general manger Don Robertson with the OHA Chrystal Puck Award for his outstanding contributions to hockey and the association during the 2010-11 season.
"We were brutal last Friday at home in front of our best crowd of the year. We have no idea how it happened, but down 6-0 at the end of the first wasn't much fun, but I'm sure the boys will ramp it up for the playoffs," said Robertson.
"Sunday was a no-hitter in Norwood. Both teams had short benches in a game that had no penalties. That won't happen again this year that's for sure."
Dundas finished the season in second place with 15 wins, six losses, four overtime losses and three shootout losses. Brantford came third with a 17-10-0-1 record. Both teams will meet in the first game of the playoffs Friday night (March 2) in the JL Grightmire Arena at 7:45 p.m. In the other semi-final series, first place Whitby Dunlops will play the Orillia Sunrise Toyota Tundras.
Game two of the best-of- seven ACH semi-final playoff series is tentatively scheduled for Sunday (March 4) in the Branford Community Centre at 2 p.m. The remaining games at Dundas are Wednesday, March 7, Sunday, March 11, and Wednesday, March 14. All games will be played at 7:45 p.m.
"This series is one that local hockey fans wait for…the 403 series…and it keeps happening. There is no love lost between these two groups from the ice surface to the top. It's great that local fans can follow the whole series in arenas that are just minutes apart. The crowds should be good and the hockey even better," said Robertson.
Cam Watson captured the ACH individual scoring title 34 goals and 29 assists for 63 points in 27 games following his five-point performance (one goal, four assists) Sunday at Norwood. Teammate Brad Kenny with a goal and an assist finished in second spot with 16 goals and 38 assists for 54 points. Ryan Christie completed the season in ninth place in league scoring with 11 goals and 27 assists for 38 points.
"It sure was nice to have Watson and Kenny end up one-two in scoring this year. They made a great commitment to us all season, and we are very proud of them," said coach Ken Mann.
Also scoring for the McCoys in the final match of the season were Justin Davis and Scott Stafford with two goals each and Jeff White with a single. Will Jones, Ryan Toms, Murray Free, Patrick Sweeney, and Jordan Freeland replied for Norwood.
In addition to Jones, the Blast got single goals last Friday night from Mark Taylor, Greg Bullock, Ryan Healy, Gerald Moriarity, Matt Ruberto, Pat Easter, and Ryan Stephenson. Replying for the Real McCoys were Scott Mifsud with a pair of goals, and single by Mike Amodeo, Watson, and John Neal.


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This action might not be possible to undo. Are you sure you want to continue?
KINBOOK, LLC, Plaintiff, v. MICROSOFT CORPORATION, Defendant.
: : : : : : : : :
INTRODUCTION Kinbook, LLC ("Kinbook"), a small online social networking software company, filed
this action against the Microsoft Corporation ("Microsoft") for unfair competition and reverse trademark infringement under the Lanham Act of 1946, 15 U.S.C. § 1125(a). Kinbook blames Microsoft's release of "Kinect" (a controller-free motion sensor for its XBOX 360 video gaming console) and "KIN" (a mobile smart telephone) for the largely unsuccessful start of its "Kinbox" Facebook application. Specifically, Kinbook claims that Microsoft's use of the word "Kin" in conjunction with Microsoft's XBOX 360 logo (i.e., "Kinect for XBOX") is confusingly similar to Kinbook's registered trademark "Kinbox." Because of Microsoft's superior marketing power and ability to saturate the market, Kinbook alleges Microsoft usurped its business identity and the value of its trademarks. As a result, Microsoft detrimentally affected the fortunes of Kinbook's business. 1
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Microsoft filed the instant motion for summary judgment (Doc. No. 28), asserting that there is no likelihood of confusion between the marks of Kinbook and Microsoft. For the reasons set forth below, the Court grants Microsoft's motion for summary judgment.
Microsoft's Kinect for XBOX 360 and KIN Phone
Microsoft is a software and consumer technology company that has been in existence since 1975. MS Facts ¶ 1. Microsoft's most popular video game hardware device is its "XBOX 360" gaming console, the successor to its original "XBOX" console introduced in November 2001. As of June 2011, Microsoft has sold over fifty-five (55) million units of its XBOX 360 console. Id. at 2. The XBOX 360 brand is much more than just the XBOX 360 console. Under the XBOX 360 umbrella, Microsoft markets the XBOX 360 console, XBOX Live,1 and a variety of video games. Kinbook Facts ¶ 25. In June 2009, Microsoft announced it planned to add a new product to the XBOX 360 brand: an interactive controller-free gaming device named "Kinect."2 MS Facts ¶ 3. Kinect is a hardware sensor that a user can attach to an XBOX 360 console enabling operation and interfacing with the XBOX 360 using gestures and spoken commands without the aid of a controller. Id. at 4. It is compatible only with the XBOX 360 console and other XBOX 360 products. Microsoft asserts that it named the gaming sensor "Kinect" because of its kinetic
XBOX Live is the online subscription service for XBOX 360 that enables users to share content, play video games with other XBOX Live subscribers, and enjoy a wide array of entertainment options on their televisions by way of their XBOX 360 console. 2 Microsoft did not publically reveal the name "Kinect" for its soon-to-be-released gaming sensor until June 2010. In the interim, Microsoft ran a trademark search in October 2009, and on April 26, 2010 filed its application for trademark registration with the United States Patent and Trademark Office for its "Kinect" product. Kinbook Facts ¶ 46. Previously, on October 29, 2009, Microsoft filed its first trademark registration for the Kinect mark in South Africa. See MS Reply at 16.
Case 2:10-cv-04828-GP Document 43 Filed 01/25/12 Page 3 of 30
qualities. Id. at 5. However, various internal Microsoft documents note that the name carries connotations of staying connected with friends and family. Kinbook Facts ¶¶ 33-39. In November 2010, Microsoft released the Kinect gaming sensor to the public to great fanfare, and within its first sixty (60) days on the market, Microsoft sold over eight (8) million Kinect units. MS Facts ¶ 7. The Kinect gaming sensor retails for approximately $150 by itself, and between $300 and $500 when bundled with the XBOX 360 console. Id. Consumers may purchase Kinect directly from Microsoft or at most electronics retailers, such as Best Buy or Amazon. Id. at 8. Microsoft targets its sales of Kinect to consumers who already own an XBOX 360 console or who would be interested in purchasing an XBOX 360 console. Id. But, in public statements and internal documents, Microsoft personnel have expressed the hope that the Kinect sensor would broaden the appeal of XBOX 360, and transform it from merely a gaming console to a "family entertainment center." Kinbook Facts ¶ 23. Kinect is marketed almost exclusively with the well-known XBOX 360 mark, which is prominently displayed on the Kinect gaming sensor itself, on all packaging for the Kinect, and in all advertisements and marketing materials for the Kinect. MS Facts ¶ 6. As of September 2011, Microsoft had spent over $100 million on promotion, advertising, and marketing of Kinect. Id. at 8. While Microsoft's Kinect product has been met with rave reviews, not all of its products have been unbridled successes. In April 2010, Microsoft developed and launched a new line of mobile smart phones exclusively for the Verizon Wireless mobile phone service known as the "KIN ONE" and the "KIN TWO" (collectively, "KIN"). Id. at 9. Microsoft chose the name KIN because it related to the concept of "next of kin" and those around the user with whom the user 3
Case 2:10-cv-04828-GP Document 43 Filed 01/25/12 Page 4 of 30
associates. Kinbook Facts ¶ 40. The KIN phones retailed for $199 or less, and required the purchase of a Verizon Wireless service plan. MS Facts ¶ 10. KIN phones did not connect with the public. Two months after the KIN phone's debut, Microsoft announced that it would cease production of the KIN phones due to a lackluster demand for the product. Id. at 11. Other than the KIN phone and the Kinect gaming sensor's common use of the term "kin" in their names, they are in all other relevant respects completely different products. Id. at 12. Indeed, the products are made by two separate divisions of Microsoft. Moreover, Microsoft has no intention of using the KIN mark on any future products. Id. at 13.
Kinbook, LLC's "Kinbox" and "Munchkinbox"
Kinbook is a small company founded by Ms. Cassandra Toroian and Ms. Jacqueline Blue. Kinbook Facts ¶ 2; MS Facts ¶ 18. The mission of the company is to "provide a digital world for family memories and communications, for current and future generations so they won't forget." Kinbook Facts ¶ 5. Consistent with that mission, in May 2009, Ms. Toroian and Ms. Blue began development of a software application designed for the sharing of online messages, photos, and videos between and among friends and family members. Id. at 2. Although Ms. Toroian and Ms. Blue initially sought to develop their own web site to serve as the platform for the Kinbook service, in July 2009, in an effort to conserve costs and attract a user base, they decided to launch the service as an application available on the socialnetworking web site, Facebook.3 Id. at 3, 4. The Facebook application Kinbook developed is unique in that it allows people that are members of Facebook to form their own personal social
Facebook is a social networking service and web site where users can create a personal profile, add other users as friends, and exchange messages, photos, or videos. A "Facebook application" is a software application designed to enhance users' experience on Facebook by allowing them to interact with online friends in various ways. See MS Facts ¶ 16.
Case 2:10-cv-04828-GP Document 43 Filed 01/25/12 Page 5 of 30
networks and not "let everyone that they are friends with on Facebook in." Id. at 7. In other words, it allows users to create private sub-social networks for sharing information within Facebook. In addition, all data that users upload to the application does not reside on storage provided by Facebook, but rather is stored on Kinbook's own offsite storage to enable a later seamless transition to an independent web site. Id. After consulting with counsel on the trademark application process, Ms. Toroian and Ms. Blue learned that over the past several years, Facebook, Inc. had opposed or threatened to oppose all trademark applications with a "____Book" mark for companies intending to launch applications for the Facebook service. Id. at 5. After confirming this fact with Facebook, Inc., Ms. Toroian and Ms. Blue decided to change the name of its Facebook application from "Kinbook" to "Kinbox" and "Munchkinbox."4 Id. After conducting a trademark search in September 2009, Ms. Toroian and Ms. Blue sought registration of the marks "Kinbox" and "Munchkinbox" with the United States Patent and Trademark Office, and formally launched its application on Facebook in December 2009. Id. at 5, 13, 14. In September 2010, the Patent and Trademark Office accepted the Statement of Use for the Kinbox and Munchkinbox marks. Id. at 15. In spite of their decision to launch a Facebook application instead of a web site, Ms. Toroian and Ms. Blue did not abandon their plans to launch an independent web site. Indeed, Kinbook purchased the web domain names, Kinboxx.com and Kinbox.org. Id. at 10. In addition to their intention to launch the service as a stand-alone web site, Ms. Toroian and Ms. Blue assert that they also intended to develop a mobile phone application at a later date. Id. at 3-4, 10.
"Munchkinbox" was intended to be a counterpart on-line social networking service to Kinbox for use among children and their extended family. MS Facts ¶ 6.
Case 2:10-cv-04828-GP Document 43 Filed 01/25/12 Page 6 of 30
Kinbook does not charge users a fee to use Kinbox. Instead, Kinbook's plan to remain financially solvent is to generate revenue from advertising, selling content (i.e., photo books, calendars), and selling additional storage to users. Id. at 11.
Kinect for XBOX 360's Effect on the Kinbox
Despite Ms. Toroian's and Ms. Blue's inspiring aspirations, Kinbook has been largely unsuccessful to date and has been unable to generate any revenues from Kinbox. Id. at 11. Likewise, Kinbook markets Kinbox and Munchkinbox exclusively on the Facebook platform, and, although Ms. Toroian testified that she and Ms. Blue originally intended to spend a minimum of $250,000 marketing Kinbox, to date they have only spent a few thousand dollars on advertising and marketing. Id. at 16; MS Facts ¶¶ 15, 19. As of May 2011, Kinbox had only 16,685 active monthly users out of over 750 million regular Facebook users.5 Kinbook Facts ¶ 11. Kinbook credits the arrival of the Kinect for XBOX 360 and Microsoft's accompanying marketing blitz with the poor start of its "Kinbox" Facebook application.6 Kinbook claims that Microsoft's use of the word "Kin" in conjunction with Microsoft's XBOX logo (i.e., "Kinect for XBOX") is confusingly similar to its registered trademark "Kinbox."7 According to Ms. Toroian, Microsoft's "Kinect for XBOX" mark along with its overwhelming marketing dollars rendered Kinbook's first-in-time registration of its Kinbox and Munchkinbox marks useless, and effectively pushed them out of the market.
Microsoft contends that Kinbox had only 14 active users as of May 2011. MS Facts ¶ 18. As of September 2011, Kinbook asserts that Kinbox has 16,752 monthly active users. Kinbook Facts ¶ 11. 6 Ms. Toroian testified that "a company the size of Microsoft could afford to spend hundreds of millions of dollars in a marketing campaign so that it would envelop anything that [Kinbook] was trying to do." Kinbook Facts ¶ 17. 7 Microsoft maintains, and the record reflects, that it does not market its Kinect product as "Kinect for XBOX." Instead, it either markets its product as "Kinect" or "Kinect for XBOX 360."
Case 2:10-cv-04828-GP Document 43 Filed 01/25/12 Page 7 of 30
Accordingly, on September 17, 2010, Kinbook filed a Complaint against Microsoft alleging one count of unfair competition and trade dress infringement8 in violation of the Lanham Act. 15 U.S.C. § 1125(a). Kinbook alleges that it incurred significant expense developing its "Kinbox" and "Munchkinbox" Facebook applications and that Microsoft has infringed the trademark and tradename rights of Kinbook by creating and marketing its Kinect and KIN products. Microsoft has filed a motion for summary judgment, which is now pending before the Court.
LEGAL STANDARD Upon motion of a party, summary judgment is appropriate if, "citing to particular parts of
materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, . . . admissions, interrogatory answers, or other materials," the moving party persuades the district court that "there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." FED . R. CIV . P. 56(c); Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988). An issue is "genuine" if a reasonable jury could possibly hold in the non-movant's favor with regard to that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if its resolution could affect the result of the suit under governing law. Id. In evaluating a summary judgment motion, the court "must view the facts in the light most favorable to the non-moving party," and make every reasonable inference in that party's favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). If, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no
Kinbook's claim, in reality, sounds in reverse trademark infringement and unfair competition.
Case 2:10-cv-04828-GP Document 43 Filed 01/25/12 Page 8 of 30
genuine issue of material fact, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 217, 322 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987). The party opposing summary judgment must support each essential element of that party's opposition by "citing to particular parts of materials in the record." FED . R. CIV . P. 56(c)(1). "The Court need consider only the cited materials" when determining whether there exists a genuine issue of material fact for trial. FED . R. CIV . P. 56(c)(3). If the cited evidence is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). This requirement upholds the "underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense." Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).
DISCUSSION Kinbook alleges that Microsoft's use of the marks "Kinect" and "KIN" infringes on its
registered trademark and constitute unfair competition under the Lanham Act. The elements for trademark infringement and unfair competition under the Lanham Act are the same. A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198, 210 (3d Cir. 2000). To prevail on either claim, Kinbook must demonstrate that (1) it owns the "Kinbox" mark, (2) the mark is valid and legally protectable, and (3) Microsoft's use of its Kinect and/or KIN marks to identify its goods is likely to cause confusion with Kinbook's Kinbox mark. Id.; Commerce Nat'l Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 437 (3d Cir. 2000). Microsoft argues
Case 2:10-cv-04828-GP Document 43 Filed 01/25/12 Page 9 of 30
that Kinbook is unable as a matter of law to establish the second and third of these elements. Because the Court concludes that based on the record evidence a reasonable jury could not find that a likelihood of confusion exists between the parties' marks, the Court will analyze only that aspect of Microsoft's motion.9 A defendant's use of a mark is likely to cause confusion where "an appreciable number of ordinarily prudent consumers" seeing the mark, Everett Labs., Inc. v. Vertical Pharm., Inc., 227 F. App'x 124, 127 (3d Cir. 2007) (emphasis removed), "would probably assume that the product or service it represents is associated with the source of a different product or service identified by a similar mark." Dranoff-Perlstein Assocs. v. Sklar, 967 F.2d 852, 862 (3d Cir. 1992) (quotation marks omitted). In Interpace Corp. v. Lapp, Inc., 721 F.2d 460 (3d Cir. 1983), the Third Circuit Court of Appeals developed a non-exhaustive list of factors to consider when determining whether there is a likelihood of confusion between two or more marks. These "Lapp factors" include: (1) the degree of similarity between the owner's mark and the alleged infringing mark; (2) the strength of the owner's mark; (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; (5) the intent of the defendant in adopting the mark;
Because the Court finds that there is no likelihood of confusion between the parties' marks, it will decline to reach a conclusion as to whether Kinbook's marks are valid and legally protectable. However, even if Kinbook's marks are, in fact, legally protectable, Microsoft is entitled to judgment as a matter of law because no reasonable jury could conclude, based on the evidence before the Court, that there is a likelihood of confusion between the parties' marks. W hile the Court acknowledges that "[f]ailure to strictly observe the principles governing summary judgment becomes particularly significant in a trademark or tradename action, where summary judgments are the exception," Doebler's Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 (3d Cir. 2006), Kinbook fails to offer any evidence demonstrating that a genuine issue of material fact exists for a jury as to likelihood of confusion.
Case 2:10-cv-04828-GP Document 43 Filed 01/25/12 Page 10 of 30
(6) the evidence of actual confusion; (7) whether the goods, though not competing, are marketed through the same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties' sales efforts are the same; (9) the relationship of the goods in the minds of consumers because of the similarity of function; and (10) other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant's market, or that he is likely to expand into that market. Id. at 463. "None of these factors is determinative in the likelihood of confusion analysis and each factor must be weighed and balanced one against the other." Sabinsa Corp. v. Creative Compounds, LLC, 609 F.3d 175, 182-83 (3d Cir. 2010). There are two types of "likelihood of confusion" claims: "direct confusion" claims and "reverse confusion" claims. Reverse confusion – the type of likelihood of confusion claim applicable to this action10 – "occurs when a larger, more powerful company uses the trademark of a smaller, less powerful senior owner and thereby causes likely confusion as to the source of the senior user's goods or services." Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d 466, 474 (3d Cir. 1994). Therefore, "the 'junior' user is junior in time but senior in market dominance or size." Freedom Card, Inc. v. JP Morgan Chase & Co., 432 F.3d 463, 471 (3d Cir. 2005).
Microsoft argues at length in its reply brief that Kinbook alleges reverse confusion for the first time in its opposition brief to Microsoft's motion for summary judgment, and failed to allege reverse confusion in its Complaint. However, Kinbook is correct that "'reverse confusion' is not a new claim, but rather an alternative theory of liability for infringement under the Lanham Act." Birmingham v. Mizuno USA, Inc., No. 09-566, 2011 W L 1299356, at *17, n.20 (N.D.N.Y. Mar. 31, 2011); see also Trouble v. W et Seal, Inc., 179 F. Supp. 2d 291, 296 (S.D.N.Y. 2001) (noting that "allegations of forward confusion and reverse confusion do not form distinct claimsthey are alternative theories that can be used separately or together in a trademark infringement claim under the Lanham Act"); cf. Bechtel v. Robinson, 886 F.2d 644, 649, n.9 (3d Cir. 1989) ("Under the federal rules, as long as the issue is pled, a party does not have to state the exact theory of relief in order to obtain a remedy."). Regardless, demonstrating laudable acuity and acumen, Microsoft anticipated and briefed reverse confusion both in its opening and reply briefs in support of its motion for summary judgment.
Case 2:10-cv-04828-GP Document 43 Filed 01/25/12 Page 11 of 30
"Economic reality and common sense" dictate that certain of the Lapp factors (particularly the second, fifth, and sixth factors) must be analyzed differently than in a typical direct confusion case. Id. at 472. In its motion for summary judgment, Microsoft urges the Court to dismiss Kinbook's trademark infringement claims as a matter of law because there is no likelihood of confusion between the parties' marks. For the reasons that follow, the Court agrees that there is no likelihood of confusion between the parties' marks, and therefore grants Microsoft's motion for summary judgment.
Similarity of the Marks (Lapp Factor No. 1)
The single most important factor in determining likelihood of confusion is mark similarity. See Fisons, 30 F.3d at 476. The test for such similarity is "whether the labels create the same overall impression when viewed separately." Id. at 477 (citation omitted). Marks "are confusingly similar if ordinary consumers would likely conclude that [the two products] share a common source, affiliation, connection or sponsorship." Id. Side-by-side comparison of the two marks is improper where the products are not normally displayed together in the market to consumers. A & H Sportswear, 237 F.3d at 216. Courts must "compare the appearance, sound, and meaning of the marks." Checkpoint Sys., Inc. v. Check Point Software Techs. Inc., 269 F.3d 270, 281 (3d Cir. 2001). Microsoft argues that on the face of the parties' marks, it is clear that the marks are both visually and phonetically different. To be sure, the fonts and colors used in each mark are wholly
Case 2:10-cv-04828-GP Document 43 Filed 01/25/12 Page 12 of 30
distinct, and the marks create entirely different overall impressions when viewed separately. See MS Facts ¶¶ 12, 14. The Kinbox mark is written in an orange bubble-like font with a thin royal blue outline. Behind the small orange "i" in the word "kin" is a larger royal blue "i" that creates the impression of a parent standing behind a child. The "o" in the word "box" is a rectangle that contains what resembles a blue person that occupies two thirds of the box waving to an orange person in the distance who occupies the remaining third of the box.
The Munchkinbox mark is depicted in much the same way as the Kinbox mark. The lower case "i" in the word "Munchkin" is identical to the lower case "i" in the "Kinbox" mark. Likewise, the word "box" is written precisely as it is in the Kinbox mark: orange with a royal blue outline, with the same box logo substituted for the lower-case "o." The primary difference between the "Kinbox" and "Munchkinbox" marks is that the word "Munchkin" is written in royal blue with a thin orange outline.
The Kinect mark, on the other hand, is written in a fairly plain font in all capital letters. The word "Kinect" contains no special graphics or design elements of note.
Case 2:10-cv-04828-GP Document 43 Filed 01/25/12 Page 13 of 30
However, the word Kinect is almost always prominently accompanied by the famous XBOX 360 mark. The XBOX 360 mark is generally depicted in a lime green and silver color scheme, and frequently is preceded by a silver sphere with a lime green "x" through the upper portion of it.
The KIN phone mark is also completely different from the Kinbox mark. The KIN phone's mark is written in a vertically elongated black font. The "K" in "KIN" is written so that each diagonal line is squared off into a right angle. The resulting effect is that the "K" resembles an upper-case "H" with two horizontal lines, and a gap on the right side of the "H" between the two horizontal lines.
Thus, the visual appearances of the these marks are wholly distinct, and the ordinary consumer could not reasonably conclude that the Kinect gaming sensor or the KIN phone are in any way related to the Kinbox Facebook application. The only common element between the "Munchkinbox" and "Kinbox" marks, and the "KIN" and "Kinect" marks is the term, word, or letters, "kin." However, the use of a similar term in two marks does not give rise to the conclusion that the marks are so similar that they are likely to confuse. See, e.g., Everett Labs, 227 F. App'x at *4-5 (finding on a motion for preliminary injunction no likelihood of confusion between pharmaceutical company's product 13
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"Strovite" with competitor's "Corvite" for prescription vitamin). As Microsoft explained at length in its motion papers, numerous third-parties' trademarks contain the term "kin" for a variety of services and products, including multiple social networking web sites and services.11 MS Facts ¶ 21, MS Ex. G. Ms. Toroian admitted at her deposition that she does not find these other uses of the term "kin" to be confusingly similar. MS Facts ¶ 22. The Court does not see how Microsoft's uses of the term "kin" in its marks for its gaming sensor and phone could be any more closely related to Kinbox or more confusing than these other examples that are referenced in footnote 11. Although Kinbook asserts that Microsoft's use of "kin" and "box" together in what it describes as Microsoft's "Kinect for XBOX" mark is the source of the purported infringement, the Court is not persuaded. First, Microsoft's mark is not "Kinect for XBOX"; it is simply, "Kinect." Second, even assuming Microsoft's mark was "Kinect for XBOX," a reasonable jury would not find that "Kinect for XBOX" looks, sounds, or means the same as the mark "Kinbox." After all, the mark "XBOX" is certainly arbitrary and carries with it significant and pre-existing brand recognition. The word "box" is not so easily spliced from the term "XBOX." Regardless, Microsoft's use of "360" with the term "XBOX" makes Microsoft's mark even more distinctive. Third, considering that the Kinect gaming sensor is always marketed and affixed with Microsoft's "XBOX 360" mark, the likelihood of confusion with Kinbook's marks is
These include, but are not limited to, "Kincafe," an online social network for families to connect; "Kin Valley," a secure online social network for the family; "Kinzin," an online social publishing service to allow groups to privately share photos; "Kinnect.Us," an online social networking service to stay connected with family and friends; "Kinector," an online service to help users stay connected with relatives through a private web site where family can share information; "Connect 2 Kin," an online service for families to stay in touch and share photos, share documents, schedule events, etc.; "Kindle," an e-book reader with social networking capabilities; and many others. MS Facts ¶ 21. The list is long enough to call to mind Shakespeare's observation, "One touch of nature makes the whole world kin." W illiam Shakespeare, Troilus and Cressida, act 3, sc. 3 (1602).
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substantially and further diminished. See A & H Sportswear, 237 F.3d at 218 ("[A]ffixing a well-known housemark . . . can help diminish the likelihood of confusion.").12 Accordingly, because Kinbook failed to put forth sufficient evidence for a reasonable jury to find that the marks are confusingly similar when viewed separately, the first Lapp factor weighs against a finding of likelihood of confusion and in favor of Microsoft.
Strength of the Owner's Mark (Lapp Factor No. 2)
The term "strength" in the context of trademarks refers to the distinctiveness of the mark; "its tendency to identify the goods sold under the mark as emanating from a particular, although possibly anonymous, source." Ritz Hotel, Ltd. v. Shen. Mfg. Co., Inc., No. 05-4730, 2009 WL 1838357, at *4 (E.D. Pa. June 25, 2009). In evaluating the strength of a mark under Lapp, courts look to (1) the inherent features of the mark contributing to its distinctiveness or "conceptual strength" and (2) the factual evidence of the mark's marketplace recognition or "commercial strength." Freedom Card, 432 F.3d at 472.
1. Conceptual strength The inquiry into conceptual strength is the same regardless of whether the plaintiff alleges direct or reverse confusion. A & H Sportswear, 237 F.3d at 231 ("When it comes to conceptual strength . . . we believe that, just as in direct confusion cases, a strong mark should weigh in
At oral argument, counsel for Kinbook represented that Microsoft's motion for summary judgment is premature because Kinbook has not yet completed discovery. Specifically, counsel noted that Kinbook has not yet received emails between Microsoft's Rule 30(b)(6) witness, Eli Friedman, and two consulting firms Lexicon and Interbrand, related to the naming of Kinect. Although the Court recognizes that the parties' dispute whether the Kinect gaming sensor was named for its "Kinetic" motion-related qualities, or for its function of aiding users in "connecting" with "kin" or family, considering the overwhelming evidence in favor of Microsoft, this one disputed fact is not ultimately material to whether the parties' marks are confusingly similar, and additional discovery related to this issue will not materially affect the Court's determination that a reasonable jury could not conclude that the marks are confusingly similar.
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favor of a senior user."). The conceptual strength of a mark is measured by classifying the mark from strongest to weakest as either (1) arbitrary or fanciful, (2) suggestive, (3) descriptive, or (4) generic. Sabinsa, 609 F.3d at 185 (citations omitted). Arbitrary or fanciful marks use "terms that neither describe nor suggest anything about the product " [e.g., Kodak]. Id. Suggestive marks require consumer "imagination, thought, or perception" to determine what the product is [e.g., Coppertone]. Id. As the Court of Appeals explained in A.J. Canfield, terms that are arbitrary or suggestive are generally treated as distinctive and, therefore, legally protectable. A.J. Canfield Co. v. Honickman, 808 F.2d 291, 297 (3d Cir. 1986). Descriptive marks "forthwith convey[ ] an immediate idea of the ingredients, qualities or characteristics of the goods" [e.g., Security Center]. Sabinsa, 609 F.3d at 185. If a mark is merely descriptive, a claimant can still establish that its mark is legally protectable if the claimant can prove that the mark has achieved secondary meaning in the mind of the consuming public. Checkpoint Sys., Inc. v. Check Point Software Techs. Inc., 104 F. Supp. 2d 437, 459 (D.N.J. 2000), aff'd, 269 F.3d 270 (3d Cir. 2001). Finally, generic marks "function as the common descriptive name of a product class" [e.g., Diet Chocolate Fudge Soda]. Id. (internal citations omitted); see also A.J. Canfield, 808 F.2d at 296. A mark that is characterized as generic is never protectable because "even complete success . . . in securing public identification . . . cannot deprive competing manufacturers of the product of the right to call an article by its name." Id. at 297 (citation omitted) (quotation omitted). Microsoft argues that Kinbook's marks are merely descriptive without secondary 16
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meaning, but even if categorized as suggestive, constitute weak marks. Microsoft observes that both Kinbook marks describe a characteristic of Plaintiff's online social-networking services and consist of two words combined – "Kin" ("one's relatives") or "Munchkin" ("children") and "box" ("to enclose in or as if in a box, or something with four sides that holds things inside of it") – that describe the precise function of its products. MS Opening Brief at 15. Therefore, it argues, the terms used in the mark are descriptive of the product and not entitled to protection. However, even if the Court were to find that the marks are suggestive, the great number of online social networking services that incorporate the term "kin" into their marks renders Kinbook's marks weak regardless of their categorization. Kinbook, on the other hand, maintains that Kinbox and Munchkinbox are strong marks that should be categorized as suggestive. It argues that applying the imagination test, the marks "Kinbox" and "Munchkinbox" require imagination, thought or perception to reach the conclusion that the nature of the goods they represent constitute "online multi-functional Facebook application[s] . . . that allows friends and family members to interact with one another," and share various files with one another. Although the Court declines to classify Kinbook's marks definitively, even if the Court were to assume that the Kinbox and Munchkinbox marks are suggestive as Kinbook contends, the Court cannot conclude based on the record evidence that Kinbook's marks are conceptually strong. Though a "useful guide in assessing strength or weakness of a mark," a mark's classification is not dispositive of its conceptual strength or in whose favor the second Lapp factor should be weighted. A & H Sportswear, 237 F.3d at 222 (citing Express Servs., Inc. v. Careers Exp. Staffing Servs., 176 F.3d 183, 186 (3d Cir. 1999)). "Suggestive or arbitrary marks 17
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may, in fact, be 'weak' marks, particularly if they are used in connection with a number of different products." A & H Sportswear, 237 F.3d at 222; see also Citizens In. Grp. v. Citizens Nat'l Bank of Evans City, 383 F.3d 110, 123 (3d Cir. 2004) ("[A]s a general rule, widespread use of even a distinctive mark may weaken the mark."); One Indus., LLC v. Jim O'Neal Distrib., Inc., 578 F.3d 1154, 1164 (9th Cir. 2009) ("In a crowded field of similar marks, each member of the crowd is relatively weak in its ability to prevent use by others in the crowd.") (citation omitted). Standing alone, the term "kin" is seemingly a descriptive term in this context, and at best, a highly suggestive term. See J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23:48 (4th ed. 2001) ("If the common element of conflicting marks is a word that is 'weak' then this reduces the likelihood of confusion. A portion of a mark may be 'weak' in the sense that such portion is descriptive, highly suggestive, or is in common use by many other sellers in the market."). Here, as has been recounted at length, Microsoft has presented ample undisputed evidence demonstrating the widespread use of the term "kin" in the marks of a litany of products and services that occupy the "social networking for families and friends" market. See MS Ex. G. Indeed, a great many of these similar "kin" related marks in the online social networking sphere are senior to Kinbook's marks, further weakening the extent of Kinbook's protection. Coupled with the term "box," it is arguable that the Kinbox mark is suggestive. However, even assuming that the "Kinbox" mark is suggestive, the prevalence of marks with the prominent term "kin" in the online social networking service sphere renders the "Kinbox" mark weak in this context.
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2. Commercial strength In a reverse confusion case, "the lack of commercial strength of the smaller senior user's mark is to be given less weight in the analysis because it is the strength of the larger, junior user's mark which results in reverse confusion." A & H Sportswear, 237 F.3d at 231 (citation omitted). Nonetheless, "analysis of the strength of the senior user's mark is relevant" in a reverse confusion case. Freedom Card, 432 F.3d at 477. Kinbook has failed to provide any evidence that its Kinbox and Munchkinbox marks have any sort of marketplace recognition. Kinbook admits that its mark is not well-known by consumers. Indeed, Kinbox has, at most, only 16,752 active monthly users out of over 750 million regular Facebook users. Kinbook Facts ¶ 11. Additionally, Kinbook acknowledges that it has not dedicated any significant time, money, or effort to advertise, promote, or market its marks or services. In fact, Kinbook admits that it affirmatively scaled down its advertising and marketing activities from aspirations of $250,000 to just a few thousand dollars following Microsoft's release of Kinect. Id. at 16, 17. In Freedom Card, the Third Circuit agreed with the district court that because the plaintiff's mark was conceptually weak and it failed to produce any evidence of the commercial strength of its mark, the second Lapp factor weighed in favor of the defendants. Freedom Card, 432 F.3d at 477; Richards v. Cable News Network, Inc., 15 F. Supp. 2d 683, 691 (E.D. Pa. 1998). The same is true for the parties here. Accordingly, because no reasonable jury could conclude based on the record evidence that Kinbook's marks are strong, the second Lapp factor weighs against a finding of likelihood of confusion and in favor of Microsoft.
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The Price of the Goods and Sophistication of Consumers (Lapp Factor No. 3)
"Different price points make confusion less likely, because the parties' goods will be purchased by different classes of consumers." Ritz Hotel, 2009 WL 1838357, at *6. When a product is relatively expensive, "more care is taken and buyers are less likely to be confused as to source or affiliation." See Checkpoint, 269 F.3d at 284. Where consumers are known to exercise a higher degree of care in evaluating products prior to making purchasing decisions, courts have been prone to find that there is not a strong likelihood of confusion. Id. The Kinect gaming sensor costs $150, or $300-$500 when bundled with an XBOX 360 console. MS Facts ¶ 7. At that price point, the Kinect gaming sensor is sufficiently expensive so as not to constitute an impulse-purchase for the vast majority of its customers. Likewise, the KIN mobile phones were priced at approximately $199 when they were available, and consumers were required to sign up for a Verizon Wireless service plan along with it that locked the customer into a multi-month commitment and costed hundreds of additional dollars per year. MS Facts ¶ 10. Consumers exercise a great degree of care when purchasing both a phone and a wireless service plan. Kinbox and Munchkinbox, on the other hand, are free services for their users that only require a Facebook account to use. These patently different price points suggest that a likelihood of confusion is remote at best. Kinbook responds that other XBOX 360 items – subscriptions, content, and games – can be purchased for much less than Kinect or the XBOX 360 gaming console. Although that may be accurate, Kinbook's focus on the XBOX 360 platform as a whole is misplaced. The product at issue is "Kinect," not every product associated with the XBOX 360 platform. Nevertheless, even the XBOX 360 products "that have a much lower cost . . . typically under $60," still attract 20
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a vastly different class of consumers than those who are using the free Kinbox application. Kinbook Response at 41. Kinbook's argument regarding the least sophisticated consumer is equally without merit. Kinbook cites to Ford Mtr. Co. v. Summit Mtr. Prods., 930 F.2d 277, 293 (3d Cir. 1991) for the proposition that "[w]hen the buyer class is mixed, the standard of care to be exercised by the reasonably prudent purchaser will be equal to that of the least sophisticated consumer in the class." Microsoft's corporate designee, Eli Friedman testified that the "target" age range for Kinect for XBOX 360 users is 5 to 80 years of age. See Kinbook Ex. H, Friedman Dep. 68:568:14. Accordingly, Kinbook argues, because the least sophisticated user of XBOX 360 products, content, and services is a mere 5 years of age, the least sophisticated consumer is a 5 year-old, who Kinbook claims could easily confuse Kinect with Kinbox. See Kin Response at 41. First, it would be completely unreasonable to assign a 5 year-old as "the reasonably prudent purchaser" for the purposes of this analysis. No matter what else the ever-remarkable currentday precocious 5 year-old can accomplish, this Court cannot fathom a 5 year-old with either the faculties or the financial means to independently purchase a retail item costing hundreds of dollars. Second, even the hypothetical precocious 5 year-old dispatched by indulgent parents (or grandparents) to make her or his own selections of amusement would likely be able to distinguish between a free software application, and a $150 piece of gaming hardware. Third, the only people that would actually purchase a Kinect are well aware of the XBOX 360, and would only buy a Kinect if they already had or planned to purchase an XBOX 360 console.13
Of course, these observations do not include any assumptions as to the facility of a young 21st century child to use these electronic items or a comparison of the ease of use by a 5 year-old as compared to the other outer-edge of the "target" group, i.e., someone in his or her 80's.
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Accordingly, the Court concludes as a matter of law that based on the record evidence no reasonable jury could find that this Lapp factor weighs in favor of finding a likelihood of confusion.
Actual Confusion (Lapp Factors Nos. 4 and 6)
"Evidence of actual confusion is not required to prove likelihood of confusion." Checkpoint, 269 F.3d at 291. Although evidence of actual confusion is not essential, such evidence would certainly strengthen a plaintiff's case. Fisons, 30 F.3d at 476. "If a defendant's product has been sold for an appreciable period of time without evidence of actual confusion, one can infer that continued marketing will not lead to consumer confusion in the future. The longer the challenged product has been in use, the stronger this inference will be." Versa Prods., Co. v. Bifold Co. (Mfg.) Ltd., 50 F.3d 189, 205 (3d Cir. 1995). Here, neither the Kinect gaming sensor, the KIN phone, nor the Kinbox application have been sold for a particularly long period of time. However, in that limited period of time, Kinbook asserts that there have been four instances of actual confusion: (1) a third-party web site, www.socialbakers.com identified Kinbox as a "related application" to Kinect for XBOX 360, Kinbook Ex. EE; (2) another third-party web site www.overclock.net, contained a blog post noting the potential for integrating the names for Kinect and XBOX 360 into "Kinbox," Kinbook Ex. FF, (3) www.kinboards.com contained a user comment on a message board that "Kinect is the bridge between Kin and XBOX 360," Kinbook Ex. GG; and (4) an online PC Magazine article described the cylindrical box that the KIN phone was packaged in as a "Kin box." Kinbook Ex. HH.
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Of these four purported instances of confusion, only the first web site actually identified the Kinbox product. See Kinbook Ex. EE. However, the purported confusion on this web site posting does not relate in any way to "mistaken purchasing decisions." First Keystone Fed. Sav. Bank v. First Keystone Mortg., Inc., 923 F. Supp. 693, 705 (E.D. Pa. 1996) ("Generalized confusion is not what courts look to, but rather, evidence of confusion in mistaken purchasing decisions."); see also Citizens Nat'l Bank of Meridian v. Citizens Bank of Philadelphia Miss., 35 F. App'x 391, 391 (5th Cir. 2002). The second two examples of purported confusion merely surmise that the general name "Kinbox" could become an abbreviation for "Kinect for XBOX 360." Kinbook Exs. FF, GG. Aside from being highly speculative, these examples relate only to confusion about the name or function of Microsoft products, and in no way relate to actual confusion by consumers of Microsoft products with Kinbook products. Finally, the PC Magazine article did not mention the Kinbox product, but merely referred, in the most literal sense, to the packaging of the KIN phone as a "KIN Box." Kinbook Ex. HH. Kinbook has not presented any evidence of actual confusion. Accordingly, the Court finds that this Lapp factor merits little, if any, weight in the likelihood of confusion inquiry.
Intent of the Defendant in Adopting the Mark (Lapp Factor No. 5)
Intent to confuse is relevant both in direct and reverse confusion cases. A & H Sportswear, 237 F.3d at 232. "The difference is that the tenor of the intent to confuse evidence changes from the deliberate intent to palm off or exploit the goodwill of the senior user's mark (deliberate confusion), to the deliberate intent to push the senior user out of the market (reverse confusion)." Freedom Card, 432 F.3d at 479.
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Kinbook has not presented any evidence from which a reasonable fact finder could conclude that Microsoft (1) was aware of Kinbook or its marks before naming its KIN and Kinect products, (2) intended to push Kinbook out of the market, or (3) named these products in an attempt to prey on Kinbook's reputation. The only evidence Kinbook presented in support of this Lapp factor is that Microsoft conducted only one trademark search in October 2009 before filing its trademark application with the United States Patent and Trademark Office in April 2010. Kinbook notes that it filed its trademark application in December 2009, two months after Microsoft conducted its trademark search. Although it would have been prudent for Microsoft to have conducted a trademark search closer to the date of filing its application, if anything, this indicates that Microsoft did not act with the intent to prey on Kinbook, and likely was unaware of Kinbook's very existence. Further, Microsoft notes that it filed its first trademark registration for Kinect in South Africa in October 2009, over one month before Kinbook began using the marks in December 2009. MS Reply at 16. This does not evidence a predatory intent on the part of Microsoft. Kinbook argues that the Third Circuit Court of Appeals has adopted a "carelessness" standard for reverse confusion cases, and that all that is needed for this Lapp factor to weigh in its favor is for Microsoft to have acted with carelessness in deciding to use the purportedly infringing mark. However, the Third Circuit Court of Appeals has not adopted a "carelessness" standard for such cases. To the contrary, the Court of Appeals considered and declined to adopt such a test in Freedom Card, 432 F.3d at 480. See also A & H Sportswear, 237 F.3d at 232-33 ("Although we recognize that our opinion in Fisons perhaps implied that mere carelessness, as opposed to deliberate intent to confuse, would weigh in a plaintiff's favor in a reverse confusion 24
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case, we are reluctant to adopt such an interpretation, as it would be manifestly out of step with our prior holdings regarding the relevance of 'intent' in trademark infringement claims."); MNI Mgmt., Inc. v. Wine King, LLC, 542 F. Supp. 2d 389, 417 (D.N.J. 2008) (finding that "although there is evidence that defendants did not adequately search for use of the name "WINE KING," it is not enough to show that defendants had the requisite intent to push plaintiff out of its market."). Kinbook has failed to present any evidence of predatory intent on the part of Microsoft. Accordingly, the Court concludes as a matter of law that no reasonable juror could find that this Lapp factor weighs in favor of finding a likelihood of confusion.
Similarity of Channels of Marketing and Advertising (Lapp Factor No. 7)
The Third Circuit Court of Appeals has recognized that "the greater the similarity in advertising and marketing campaigns, the greater the likelihood of confusion." Checkpoint, 269 F.3d at 288-89 (quoting Acxiom Corp. v. Axiom, Inc., 27 F. Supp. 2d 478, 502 (D. Del. 1998)). Applying this factor, courts are to consider the specific mediums by which the parties market their products "as well as the manner in which the parties use their sales forces to sell their products to consumers." Checkpoint, 269 F.3d at 289. The evidence is undisputed that Kinbook's advertising is limited to "banner advertisements" on Facebook. In addition, Kinbox is available on and compatible only with Facebook. Kinect, on the other hand, is used exclusively with Microsoft's XBOX 360 console and is marketed and sold in electronics retail stores and on the Microsoft web site. Microsoft advertises its XBOX 360 products through a variety of media such as television and the internet.
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The KIN phone could only be used with Verizon phones and was marketed and sold exclusively through Verizon Wireless online and retail stores. In other words, the evidence makes clear that the products are marketed and sold through completely different, non-intersecting channels of trade. Kinbook asserts that both parties market their products on Facebook. Indeed, Facebook is the only medium through which Kinbook has advertised its Kinbox application. However, as Microsoft points out, advertising on the internet and, more specifically, on Facebook has become vast and indiscriminate, and "virtually every business today" uses the internet and Facebook for marketing purposes. See, e.g., Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1151 (9th Cir. 2002) ("Some use of the Internet for marketing, however, does not alone and as a matter of law constitute overlapping marketing channels." (emphasis in original)). As the Sixth Circuit Court of Appeals observed in Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 637 (6th Cir. 2002), "a non-specific reference to Intenet use is no more proof of a company's marketing channels than the fact that it is listed in the Yellow Pages of the telephone directory." In today's commercial world, a company's presence on Facebook is no different.14 Kinbook has failed to present any evidence from which a reasonable jury could conclude that the parties' marketing and advertising channels overlap in any way beyond their mutual use of Facebook. Accordingly, the Court finds that this Lapp factor merits no measurable weight in the calculation of the likelihood of confusion.
"The argument that the goods are 'related' in a trademark infringement sense because they are both marketed over the Internet (or if both types of goods are found on the eBay W eb site) suffers from the same fallacy as the old "under the same roof" argument. . . . [I]n the Twenty-First Century, the Internet has become the venue for the advertising and sale of all manner of goods and services. That the goods or services of the parties are both found on the Internet proves little, if anything, about the likelihood that consumers will confuse similar marks used on such goods or services." McCarthy § 24:53.50 (4th ed. Supp. 2011) (citations omitted).
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Similarity of Targets of Parties' Sales Efforts (Lapp Factor No. 8)
When parties target their sales efforts at the same consumers, there is a greater likelihood of confusion. Checkpoint, 269 F.3d at 289. Here, the parties do not target their sales efforts at the same customers, nor do the parties' products and services compete. The Kinect gaming sensor is targeted at customers who already have or are interested in buying an XBOX 360. The KIN phone targeted customers interested in buying a new phone. Kinbook, on the other hand, targets customers who use Facebook and want to share information with an enclosed group of family members. Kinbook takes an expansive view of this Lapp factor and argues that Microsoft is undergoing a massive re-launch of its XBOX 360 platform with the release of Kinect and is now also targeting Kinbook's primary demographics: (1) Facebook users, (2) women, and (3) families. Kin Response at 49. However, if that were enough to satisfy this Lapp factor, the target audiences of Kinect and Kinbox would overlap with practically every product and service in every industry on the market today. Evidence that Microsoft is "targeting" what amounts to virtually every consumer in the world does not constitute meaningful evidence that it is targeting the same consumers as Kinbook. Accordingly, the Court concludes that Kinbook has failed to present any record evidence from which a reasonable jury could conclude that this Lapp factor weighs in favor of a finding of likelihood of confusion.
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Similarity of Function Between the Products (Lapp Factor No. 9)
As has been detailed at length, the Kinect gaming sensor, KIN phone, and Kinbox Facebook application all perform entirely different functions. The Kinect is a hardware gaming sensor used primarily in playing video games. The KIN was a telephone used primarily for making telephone calls. Kinbox and Munchkinbox on the other hand are online social-media networking applications for Facebook. Kinbook goes to great lengths to try to equate the functions of the Kinect with those of the XBOX 360 platform. The "XBOX 360 Platform," as Kinbook defines it, includes the Kinect sensor, the XBOX 360 console, and an internet connection, whereby the user can access XBOX Live, and Facebook. All of the articles, reports, and testimony Kinbook relies on for its argument relate to the functions of the "XBOX 360 Platform," not Kinect specifically. Indeed, collectively, the "XBOX 360 Platform" has some functional overlap with the Kinbox application. For example, as a secondary feature, the Kinect gaming sensor enables users to take pictures or videos of themselves while playing a game. With the aid of the XBOX 360 console and an internet connection, users can then upload this user-created content onto the internet where they can share that content on social networking sites such as Facebook. See Kinbook Ex. H, Friedman Dep. 21:4-22:6. Similarly, when attached to the XBOX 360 and XBOX Live via an internet connection, the camera inside the Kinect sensor enables users to video chat with other users of the XBOX 360, XBOX Live and Kinect. See id. at 38:17-39:11. Although Kinbook tries to equate the functions of Kinect and Kinbox with elaborate diagrams, see Kinbook Ex. K, it ignores that Kinect, and the "XBOX 360 Platform" are not the same product. The Kinect gaming sensor is merely one small part of the "XBOX 360 Platform," 28
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and the primary function of Kinect is to complement the XBOX 360 console with controller-less gaming. While Microsoft has expressed the sentiment that Kinect has transformed the XBOX 360 into a "family entertainment center" that permits users to socialize, watch television and movies, and play games, Kinbox, by virtue of its trademark registration, does not have a monopoly on all uses of the term "kin" related to products that appeal to the family. Simply because the larger "XBOX 360 Platform" overlaps in function with Kinbox to some degree, does not mean that there exists any likelihood of confusing Kinect with Kinbox.15 Accordingly, the Court concludes that Kinbook has failed to present evidence from which a reasonable jury could conclude that this Lapp factor weighs in favor of a finding of likelihood of confusion.
Likelihood of Expansion into Other Party's Market (Lapp Factor No. 10)
The record evidence is undisputed that Kinbook has no intention to expand its Munchkinbox or Kinbox marks into the mobile phone or video gaming arena. Although Kinbook asserts that in "future phases the product would be accessible through a mobile phone device," it has not presented any evidence that it intends to expand its operations into the manufacture and sale of mobile phones. See Kinbook Facts ¶¶ 3-4, 10. The market for mobile phones and for mobile phone software applications are entirely distinct. Regardless, Microsoft
As noted in footnote 12 supra, at oral argument, counsel for Kinbook represented that Microsoft's motion for summary judgment is premature because Kinbook has not yet completed discovery. Specifically, counsel noted that Kinbook has not yet deposed Microsoft CEO Steve Ballmer on statements he made in a January 20, 2011 interview with USA Today. The Court is not convinced that this additional discovery would have any effect on the resolution of this motion. Mr. Ballmer's statements in the USA Today interview related to the XBOX 360 platform as a multifunctional "family entertainment center" and are largely immaterial. Microsoft never suggested that the only function of XBOX 360 is gaming, and no reasonable jury could conclude that an overlap in some functions between the XBOX 360 platform and Kinbox is likely to cause confusion between Kinect and Kinbox.
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has discontinued production and sale of mobile phones carrying the KIN mark and has represented to the Court that it has no intention of reviving the KIN mobile phone product. Likewise, Kinbook has not presented any evidence to show that Microsoft has any intention of expanding the use of the KIN mark outside of the mobile phone area, or the Kinect mark outside of the gaming sensor area. MS Facts ¶ 13. Accordingly, the Court concludes that Kinbook has failed to present evidence from which a reasonable jury could conclude that this Lapp factor weighs in favor of a finding of likelihood of confusion. V. CONCLUSION For the foregoing reasons, the Court concludes that Kinbook has failed to raise any issue of material fact that could permit a reasonable jury to find in its favor. Accordingly, the Court will grant Microsoft's motion for summary judgment. An appropriate Order consistent with this Memorandum follows.
S/Gene E.K. Pratter GENE E.K. PRATTER UNITED STATES DISTRICT COURT
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Disney has launched 4 teaser trailers for Pixar's upcoming prequel to Monsters, Inc. The official synopsis, via /Film:
Mike Wazowski and James P. Sullivan are an inseparable pair, but that wasn't always the case. From the moment these two mismatched monsters met they couldn't stand each other. "Monsters University" unlocks the door to how Mike and Sulley overcame their differences and became the best of friends.
Screaming with laughter and fun, "Monsters University" is directed by Dan Scanlon ("Cars," "Mater and the Ghostlight," "Tracy") and produced by Kori Rae ("Up," "The Incredibles," "Monsters, Inc.").
Besides the one on their YouTube channel (above), they've released additional trailers at iTunes, Yahoo Movies and HuffPost.
The film hits theaters June 21, 2013.


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Friday, July 1st, 2011
Washington is a landscape photographer's delight. You get to capture serene nature, the kingdom of the wild by day and a buzzing city by night. Here are some reasons why… Continue reading
Washington is a landscape photographer's delight. You get to capture serene nature, the kingdom of the wild by day and a buzzing city by night. Here are some reasons why… Continue reading
Do you have a bug bite and aren't sure where it came from? Check out today's Cool Site for some helpful insight! Continue reading
Tired of trying to select an object on an OpenOffice.org Impress slide? Here's the one-two punch to make the problem disappear! Check it out! Continue reading
Did you know you can search for clipart in Bing? Well, you can, and it's super easy to get there! Check this tip out now! Continue reading
Today's Cool Site is a two for one! That's right, not only do you get to view amazing wood art that has been carved with a chainsaw, you'll also get a link to the artist's homepage and a video of him hard at work creating a masterpiece. Be sure to check it out today! Continue reading
We all know the convenience of selecting cells using the Shift and Ctrl keys with the mouse… but if you're not into key combination or just aren't good at using them then here's the keyboard free way to accomplish your goal. Continue reading
BodiMojo is a site that is dedicated to putting the power in the hands of teens to change how they think about their bodies, teach them how to live healthier, and encourages them to exercise through activities they already love. Continue reading
Did you know that if you're using Google Chrome as a web browser, that you can search Google with your voice? You can! Check it out! Continue reading
This article will help you add or remove programs to the Quick Launch toolbar in Windows 7. Continue reading
Reach virtually any command in MS Excel with this incredibly quick keyboard shortcut! Continue reading