HTC and AT&T have been served with cease and desist documents from Vivid Entertainment which claim that the HTC Vivid’s name will lead to confusion in the marketplace. Vivid Entertainment is threatening HTC and AT&T with legal action if the handsets name is not changed.
We don’t claim to be trademark experts here, but trademark law claims that there needs to be a “likelihood of confusion” in order for a company to sue for trademark infringement. HTC has publically acknowledged the situation.
We are reviewing the complaint and don't expect to have any further comment until it is resolved.HTC America
Below is a list of factors that the courts typically look at to determine trademark infringement:
- strength of the mark
- proximity of the goods
- similarity of the marks
- evidence of actual confusion
- similarity of marketing channels used
- degree of caution exercised by the typical purchaser
- defendant’s intent
Based on these factors, we find it hard for Vivid Entertainment to prove that the HTC Vivid is infringing on its trademark. Unless Vivid Entertainment is working on an adult entertainment phone, we don’t know how consumers would ever confuse HTC’s smartphone with Vivid Entertainment’s adult media empire.
If HTC and AT&T do have to come up with a new name for the Vivid, we hope they don’t fall back on the dreadful HTC Holiday code name the device had before it was rechristened the Vivid. What do you think HTC should change the phone’s name to in order to avoid a legal battle with Vivid Entertainment?