Uncommon, LLC v. Spigen, Inc.

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The Martensen declaration added little to the substantial disclosures already made.

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Uncommon filed a lawsuit against Spigen in December 2015, alleging trademark infringement and unfair competition.

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Dictionary definitions of 'capsule' include 'a small case, envelope, or covering' and 'any object that can be used to hold things'.

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Uncommon did not seek to extend discovery or depose Martensen.

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Spigen disclosed a consumer survey conducted by a 'non-testifying expert' to demonstrate that consumers did not associate 'capsule' with Uncommon's cases.

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The district court considered the survey, despite Spigen's failure to properly disclose the expert as a testifying expert, and granted summary judgment in favor of Spigen.

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Spigen applied to register several trademarks containing the word 'Capsule' between 2014 and 2016, some of which were registered on the Supplemental Register or required a disclaimer of the word 'Capsule'.

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The marks are, at most, barely similar.

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Many of Uncommon's competitors use the word 'capsule' in their case names.

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Spigen timely disclosed Martensen's survey with its underlying data, a summary of Martensen's credentials, and Bania's report, which relied heavily on the survey.

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Uncommon's mark is neither inherently nor actually distinctive, and thus, it is a weak mark.

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A consumer survey showed that very few customers were familiar with 'capsule' as a brand name or associated it with Uncommon.

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Uncommon, LLC began marketing cellphone cases under the name 'CAPSULE' in December 2009 and obtained a trademark registration in May 2013.

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Spigen, Inc. began selling cellphone cases under the 'capsule' brand in June 2010, allegedly without knowledge of Uncommon's trademark.

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Spigen has used the mark for almost as long as Uncommon has, and Uncommon concedes that Spigen was unaware of Uncommon's trademark before this lawsuit.

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The word 'capsule' directly conveys an idea of coverage, storage, and protection.

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There is no evidence of actual consumer confusion.

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Uncommon knew that Martensen's testimony was on the table, as the disclosure stated he may be called to testify on the methodology of the survey if needed.

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There is no evidence that Spigen uses 'capsule' in an effort to pass off its cases as Uncommon's.