Ironhawk Technologies, Inc. v. Dropbox, Inc., No. 2:2018cv01481 - Document 264 (C.D. Cal. 2019)
Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT, 91 by Judge Dean D. Pregerson: Dropboxs Motion for Summary Judgment is GRANTED. MD JS-6. Case Terminated. (shb)
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Ironhawk Technologies, Inc. v. Dropbox, Inc. Doc. 264 1 2 O JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 IRONHAWK TECHNOLOGIES, INC., 12 Plaintiff, 13 14 v. DROPBOX, INC., 15 Defendants. ) ) ) ) ) ) ) ) ) ) Case No. CV 18-01481 DDP (JEMx) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [Dkt 91] 16 17 Presently before the court is Defendant Dropbox, Inc. 18 (“Dropbox”)’s Motion for Summary Judgment. 19 submissions of the parties and heard oral argument, the court 20 grants the motion and adopts the following Order. 21 I. 22 Having considered the Background Plaintiff Ironhawk Technologies, Inc., (“Ironhawk”) developed 23 software that uses compression and replication to transfer data 24 efficiently in “bandwidth-challenged environments.” 25 of David Gomes in Support of Opposition, ¶¶ 2-3.) 26 Ironhawk has marketed this software under the name “SmartSync.” 27 (Id. ¶ 5.) 28 SmartSync in 2007. (Declaration Since 2004, Ironhawk obtained a trademark registration for (Id. ¶ 7.) Dockets.Justia.com 1 Dropbox provides cloud-based file storage and synchronization 2 services that allow users to access files from anywhere on any 3 device. 4 launched a feature it dubbed “Smart Sync.” 5 Smart Sync feature allows users to choose whether files are stored 6 locally or, in the interest of saving hard drive space, online 7 only. 8 product, but rather a feature of certain paid prescription plans. 9 (Id. ¶ 4.) (Declaration of Genevieve Sheehan, ¶ 2.) In 2017, Dropbox (Id. ¶ 3.) Dropbox’s (Id. ¶ 3.) Dropbox’s Smart Sync is not a stand-alone 10 Ironhawk’s Complaint alleges that Dropbox’s use of the name 11 “Smart Sync” intentionally infringes upon Ironhawk’s “SmartSync” 12 trademark, is likely to cause confusion among consumers as to the 13 affiliation of Dropbox’s product with Ironhawk, and has actually 14 confused Ironhawk’s customers as to the relationship between 15 Ironhawk and Dropbox’s product. 16 now moves for summary judgment. 17 II. 18 (Complaint ¶¶ 38, 40-41.) Dropbox Legal Standard Summary judgment is appropriate where the pleadings, 19 depositions, answers to interrogatories, and admissions on file, 20 together with the affidavits, if any, show “that there is no 21 genuine dispute as to any material fact and the movant is entitled 22 to judgment as a matter of law.” 23 seeking summary judgment bears the initial burden of informing the 24 court of the basis for its motion and of identifying those portions 25 of the pleadings and discovery responses that demonstrate the 26 absence of a genuine issue of material fact. 27 Catrett, 477 U.S. 317, 323 (1986). 28 the evidence must be drawn in favor of the nonmoving party. Fed. R. Civ. P. 56(a). 2 A party See Celotex Corp. v. All reasonable inferences from See 1 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). 2 moving party does not bear the burden of proof at trial, it is 3 entitled to summary judgment if it can demonstrate that “there is 4 an absence of evidence to support the nonmoving party's case.” 5 Celotex, 477 U.S. at 323. 6 If the Once the moving party meets its burden, the burden shifts to 7 the nonmoving party opposing the motion, who must “set forth 8 specific facts showing that there is a genuine issue for trial.” 9 Anderson, 477 U.S. at 256. Summary judgment is warranted if a 10 party “fails to make a showing sufficient to establish the 11 existence of an element essential to that party's case, and on 12 which that party will bear the burden of proof at trial.” 13 477 U.S. at 322. 14 that a reasonable jury could return a verdict for the nonmoving 15 party,” and material facts are those “that might affect the outcome 16 of the suit under the governing law.” 17 There is no genuine issue of fact “[w]here the record taken as a 18 whole could not lead a rational trier of fact to find for the 19 nonmoving party.” 20 Corp., 475 U.S. 574, 587 (1986). 21 Celotex, A genuine issue exists if “the evidence is such Anderson, 477 U.S. at 248. Matsushita Elec. Indus. Co. v. Zenith Radio It is not the court’s task “to scour the record in search of a 22 genuine issue of triable fact.” 23 1278 (9th Cir. 1996). 24 support clearly. 25 1026, 1031 (9th Cir. 2001). 26 file for evidence establishing a genuine issue of fact, where the 27 evidence is not set forth in the opposition papers with adequate 28 references so that it could conveniently be found.” Keenan v. Allan, 91 F.3d 1275, Counsel have an obligation to lay out their Carmen v. San Francisco Sch. Dist., 237 F.3d The court “need not examine the entire 3 Id. 1 III. Discussion 2 A. Likelihood of Confusion 3 A plaintiff alleging trademark infringement must demonstrate 4 (1) an ownership interest in a mark and (2) that the defendant’s 5 use of the mark is likely to cause consumer confusion. 6 Parks and Recreation v. Bazaar Del Mundo, Inc., 448 F.3d 1118, 1124 7 (9th Cir. 2006). 8 the likelihood of confusion, i.e., whether the similarity of the 9 marks is likely to confuse customers about the source of the Dep’t of “The core element of trademark infringement is 10 products.” 11 F.3d 1036, 1053 (9th Cir. 1999). 12 on factors including, but not limited to, the strength of the mark, 13 the similarity of the marks, the relatedness of the parties’ 14 products, marketing channels used, the degree of care consumers are 15 likely to use in purchasing goods, the defendant’s intent in 16 selecting its mark, evidence of actual confusion, and the 17 likelihood of expansion in product lines (collectively, the 18 “Sleekcraft factors”). 19 Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979). 20 21 Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 1. Likelihood of confusion may turn Id. at 1053-54 (citing AMF Inc. v. Strength of Ironhawk’s SmartSync mark a. Conceptual Strength 22 The level of protection afforded to a particular trademark is 23 dependent upon the mark’s conceptual and commercial strength, with 24 stronger marks receiving more protection. 25 Jim Beam Brands Co., 828 F.3d 1098, 1107 (9th Cir. 2016). 26 spectrum of strength, and concomitant trademark protection, ranges 27 from generic marks, at the very low end, through descriptive, 28 suggestive, fanciful, and, at the high end, arbitrary marks. 4 JL Beverage Co., LLC v. The Id. 1 Arbitrary and fanciful marks have no obvious connection to the 2 related products, and are thus deserving of the highest degree of 3 protection. 4 F.3d 625, 631-32 (9th Cir. 2005). 5 no more than define a product, either in whole or in part, and are 6 therefore entitled to no trademark protection. 7 Suggestive marks, which require some “mental leap” from the mark to 8 the product in question, enjoy some trademark protection, but are 9 presumptively weak. Surfvivor Media, Inc., v. Survivor Productions, 406 Generic and descriptive marks do Id. at 632. Brookfield, 174 F.3d at 1058. A “mental leap” 10 that is “almost instantaneous,” however, is indicative of 11 descriptiveness rather than suggestiveness. 12 Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 13 902, 911 (9th Cir. 1995). 14 warrant protection “if the infringing mark is quite similar and the 15 goods or services [the two marks] connote are closely related.” 16 Nutri/Sys., Inc. v. Con-Stan Indus., Inc., 809 F.2d 601, 605 (9th 17 Cir. 1987). 18 Self-Realization A suggestive mark may nevertheless Here, Ironhawk’s “SmartSync” mark appears to be descriptive. 19 “Descriptive marks define qualities or characteristics of a product 20 in a straightforward way that requires no exercise of the 21 imagination to be understood.” 22 & J. Gallo Winery, 150 F.3d 1042, 1047 n.8 (9th Cir. 1998); see 23 also Brookfield, 174 F.3d at 1058, n.19 (“Descriptive terms 24 directly describe the quality or features of the product.”). 25 Ironhawk’s CEO and person most knowledgeable testified that 26 Ironhawk’s SmartSync software performs “synchronization, 27 replication, and distribution” of data, and that it does so in a 28 “bandwidth-efficient” manner “by intelligently meeting three Kendall-Jackson Winery, Ltd. v. E. 5 1 fundamental capabilities . . .: [t]ransport, content repository, 2 (sync implied) [sic] and compression.” 3 Ex. 7 at 157-58.) 4 describe at least some of the characteristics of Ironhawk’s 5 product, namely synchronization and “intelligent” transport, 6 compression, and synchronization. 7 entitled to no protection.1 8 9 (Ray Decl., Ex. 4 at 138; The term “SmartSync,” therefore, appears to Accordingly, Ironhawk’s mark is Even if Ironhawk’s Smartsync mark were suggestive rather than descriptive, the mark would still be weak.2 A suggestive mark is 10 presumptively weak. 11 attempts to rebut this presumption with evidence that, according to 12 Ironhawk, demonstrates that the SmartSync mark “enjoys commercial 13 strength at the very least within its historical niche market of 14 United States military software.” 15 commercial strength, or actual marketplace recognition, may 16 transform an otherwise weak suggestive mark into a strong mark. 17 Beverage, 828 F.3d at 1107. Brookfield, 174 F.3d at 1058. Ironhawk (Opp. at 13:16-17.) Indeed, JL Ironhawk has not, however, put forth 18 1 19 20 21 22 Even descriptive marks may be protectable if they have acquired “secondary meaning,” such that consumers begin to associate the mark with a single source. See, e.g. Filipino Yellow Pages, Inc. v. Asian Journal Publications, Inc., 198 F.3d 1143, 1147 (9th Cir. 1999). Here, however, there appears to be no dispute that Ironhawk’s mark has not gained secondary meaning in the minds of consumers. 2 23 24 25 26 27 28 A trier of fact could, perhaps, conclude that the isolated term “smart,” even to the extent it refers to “intelligent” features of Ironhawk’s product, is nevertheless sufficiently vague to require a “mental leap” to Ironhawk’s software. Indeed, Dropbox itself has submitted evidence that the term “Smart Sync” is used with reference to a wide variety of products, including nontechnological applications such as skin cream, and the word is commonly used in connection with products ranging from automobiles to audio speakers. (Ray Decl., Ex 8 at 88.) Marks must, however, be considered in their entirety. Nutri/System Inc., 809 F.2d at 605. The evidence that Ironhawk’s SmartSync software synchronizes data is unavoidable. 6 1 any evidence of such recognition within the market (niche or 2 otherwise) for military software. 3 aggregate revenue over a 15-year period, for example, does little 4 to establish market visibility in the absence of any evidence of 5 the size of the market or Ironhawk’s share of the market. 6 e.g., Aurora World, Inc. v. Ty Inc., 719 F. Supp. 2d 1115, 1159 7 (C.D. Cal. 2009); c.f. Troy Healthcare, LLC v. Nutraceutical Corp., 8 No. C11-844-RSM, 2011 WL 13127843, at *8 (W.D. Wash. June 6, 2011). 9 Nor could a reasonable finder of fact conclude that Ironhawk’s Evidence of Ironhawk’s total See, 10 SmartSync is recognized in the marketplace based upon Ironhawk’s 11 CEO’s vague references to “countless face to face meetings with 12 United States military officials and trade shows,” “countless hours 13 of sweat equity,” the “development of a website [and] employment of 14 salespeople,” of whom only two are named, including the CEO 15 himself, and a marketing budget that averages only $16,000 per 16 year. 17 evidentiary basis sufficient to rebut a presumption of weakness, 18 Ironhawk’s SmartSync mark warrants little to no trademark 19 protection. (Gomes Decl. ¶ 9. ) Because Ironhawk has put forth no 20 b. 21 22 Conceptual Strength of Dropbox’s Smart Sync name Ironhawk has alleged both forward and reverse confusion 23 theories of trademark infringement. 24 junior user’s infringing use of a mark may mislead the senior 25 user’s customers into believing they are doing business with the 26 junior user. 27 off is not the concern in a reverse confusion case, the less well- 28 known senior user may nevertheless lose its goodwill when an In reverse confusion cases, a See JL Beverage, 828 F.3d at 1107. 7 Although palming 1 infringing junior user saturates the market. M2 Software, Inc. v. 2 Madacy Entm't, 421 F.3d 1073, 1089 (9th Cir. 2005) (citing 3 Dreamwerks Prod. Grp., Inc. v. SKG Studio, 142 F.3d 1127, 1130 n.5 4 (9th Cir. 1998).) 5 the market will depend on the commercial strength of the alleged 6 infringer’s use of a mark in comparison to the conceptual strength 7 of the senior user’s mark. 8 JL Beverage Co., 828 F.3d at 1107; Moose Creek, Inc. v. Abercrombie 9 & Fitch Co., 331 F. Supp. 2d 1214, 1224 (C.D. Cal. 2004) (citing Whether a junior user has, in fact, saturated 10 Glow Indus., Inc. v. Lopez, 252 F.Supp.2d 962, 987 n. 112 (C.D.Cal. 11 2002). 12 likely that consumers will associate it with any source, even a 13 commercially strong junior user. 14 F.Supp.2d at 292. 15 mark, the reverse confusion plaintiff will be unable to establish a 16 likelihood of confusion, even if the junior user’s commercial 17 strength is likely to overwhelm the plaintiff in the marketplace.” 18 Instant Media, Inc. v. Microsoft Corp., No. C 07-02639 SBA, 2007 WL 19 2318948, at *12 (N.D. Cal. Aug. 13, 2007). 20 Of course, where a mark is conceptually weak, it is less See, e.g., Glow Indus., 252 Thus, “[a]bsent a conceptually strong senior Here, as discussed above, Ironhawk’s SmartSync mark is 21 conceptually weak. 22 name is, therefore, of little import. 23 jury could not conclude that Dropbox has flooded the marketplace 24 with the term “Smart Sync,” such that consumers associate that term 25 or mark with Dropbox. 26 Dropbox allocates $7,000 per month to Google keyword advertising 27 related to “Smart Sync,” there is no evidentiary support for 28 Ironhawk’s assertion that Dropbox’s effort “has resulted in a The commercial strength of Dropbox’s Smart Sync Furthermore, a reasonable Although Ironhawk points to evidence that 8 1 strong association between Dropbox and ‘Smart Sync.’”3 (Opp. at 2 14:3-4.) 3 Because Ironhawk’s SmartSync mark is conceptually weak, and 4 for the additional reason that there is no evidence that Dropbox’s 5 use of “Smart Sync” is commercially strong, the strength factor 6 weighs heavily against a likelihood of confusion. 7 8 9 2. Similarity of the Parties’ Products The less similar the parties’ products, the less likely it is that consumers will confuse the parties’ marks. Dropbox has 10 produced evidence that its Smart Sync product is designed to help 11 users conserve computer hard drive space by allowing files to be 12 stored solely online. 13 and businesses. 14 efficient data transfer by using compression and replication” in 15 “limited bandwidth environments.” 16 undisputed that the United States Navy is the only user of 17 Ironhawk’s product. 18 parties’ products are similar because “both Dropbox’s and 19 Ironhawk’s data management software facilitate access to files by 20 multiple users in multiple locations.” 21 cannot establish meaningful similarity at such a high level of 22 abstraction. 23 and a plethora of other products “facilitate access to files by 24 multiple users in multiple locations,” but are hardly similar to Dropbox markets its product to individuals Ironhawk’s SmartSync, in contrast, “allow[s] for (Gomes Decl. ¶¶ 2-3.) It is Nevertheless, Ironhawk argues that the (Opp. at 17:4-5.) Ironhawk Indeed, ZIP files, USB drives, e-mail attachments, 25 26 27 28 3 Ironhawk’s attempt to use Dropbox’s expert reports to establish an association in consumers’ minds between “Smart Sync” and Dropbox is not sufficient to establish a triable issue where those experts did not examine the term in isolation, but rather alongside references to Dropbox. 9 1 either product at issue here. The mere fact that both products deal 2 in some manner with the transfer of electronic data is not enough 3 to render the products similar for purposes of a trademark 4 analysis. 5 against a likelihood of confusion. 6 The dissimilarity of the parties’ products weighs 3. Similarity of the Marks 7 There can be no dispute that Dropbox’s “Smart Sync” feature 8 bears a name almost identical to Ironhawk’s “SmartSync” product. 9 Notwithstanding the close proximity of the two marks, however, 10 “their similarity must be considered in light of the way the marks 11 are encountered in the marketplace and the circumstances 12 surrounding the purchase . . . .” 13 725 F.2d 1240, 1245 (9th Cir. 1984). 14 “Smart Sync” feature name is only “superficially’ similar to 15 Ironhawk’s “SmartSync” mark because neither Dropbox nor Ironhawk 16 uses its respective mark in isolation. 17 consistently includes its business name or house mark alongside its 18 version of the disputed mark. 19 Lindy Pen Co. v. Bic Pen Corp., Dropbox argues that its Rather, each party Dropbox looks to Cohn v. Petsmart, Inc., 281 F.3d 837 (9th 20 Cir. 2002) to support its argument. 21 called Petsmart and a veterinary clinic called the Critter Clinic 22 both used the trademarked tagline, “Where pets are family.” 23 281 F.3d at 837. 24 isolation, and both always placed their respective business names 25 before the trademarked term. 26 likelihood of confusion, the Ninth Circuit observed that the two 27 users “present[ed] distinct commercial identities by placing their 28 greatest emphasis on their unique business names.” In Cohn, a pet supply store Cohn, As here, neither party used the tagline in In determining that there was no 10 Cohn v. 1 Petsmart, Inc., 281 F.3d 837, 843 (9th Cir. 2002). 2 further stated that “[t]he emphasis on [the parties’ respective] 3 housemarks has the potential to reduce or eliminate likelihood of 4 confusion.” 5 Norm Thompson Outfitters, Inc. v. Gen. Motors Corp., 448 F.2d 1293, 6 1298 (9th Cir. 1971). 7 The court Id. at 842 (internal quotation marks omitted) (citing The same logic applies here. Although the trademarked term is 8 not a slogan or tagline, as in Cohn or Norm Thompson Outfitters, 9 the names of the parties “invariably accompan[y]” the marks. 10 Thompson Outfitters, 448 F.2d at 1298. 11 Sync is not a freestanding offering, and the term is only 12 encountered in the marketplace in conjunction with the Dropbox 13 products of which it is a component part. 14 similarity of the marks factor weighs against likelihood of 15 confusion. Norm 16 4. Indeed, Dropbox’s Smart Accordingly, the Actual Confusion 17 “Evidence that use of the two marks has already led to 18 confusion is persuasive proof that future confusion is likely.” 19 Sleekcraft, 599 F.2d at 352. 20 produced no evidence of actual confusion.4 21 the Ninth Circuit has rejected Dropbox’s argument that evidence of 22 confusion must come from “purchasing consumers.” 23 Rearden Commerce, Inc., the court explained that courts must take 24 “relevant non-consumer confusion” into account. Dropbox argues that Ironhawk has As an initial matter, In Rearden LLC v. Rearden, 683 F.3d 25 26 27 28 4 Dropbox also cites to its own expert’s opinion to support the argument that there is no confusion. In light of Ironhawk’s criticisms of the validity of that study, however, the survey issue would be better suited to a separate motion or to determination by a trier of fact. 11 1 1190, 1213 (9th Cir. 2012). Although the focus of a trademark 2 analysis is indeed the likelihood of confusion among actual 3 consumers, non-consumer confusion may be relevant where it could 4 5 6 7 8 9 10 (1) turn into actual consumer confusion (i.e., potential consumers); (2) serve as an adequate proxy or substitute for evidence of actual consumer confusion (i.e., non-consumers whose confusion could create an inference of consumer confusion); or (3) otherwise contribute to confusion on the part of the consumers themselves (i.e., non-consumers whose confusion could influence consumer perceptions and decision-making). Rearden, 683 F.3d at 1216. Here, Ironhawk references e-mails from two of its resellers 11 expressing some degree of concern about the possibility of 12 confusion. 13 mails, which the re-sellers then sent back to Ironhawk. 14 Dropbox suggests that no jury could credit those messages because 15 they were not independently drafted, Ironhawk has introduced 16 evidence that its CEO drafted the messages at the re-sellers’ 17 request. 18 that they were unaware of any instances of consumer confusion 19 between Dropbox’s Smart Sync feature and Ironhawk’s SmartSync 20 software. 21 weighs against likelihood of confusion or is, at best, neutral. 22 23 It is undisputed that Ironhawk’s CEO drafted both eAlthough In any event, however, both re-sellers later testified Accordingly, the evidence of actual confusion factor 5. Marketing Channels Dropbox argues that the parties’ disparate marketing efforts 24 also weigh against a likelihood of confusion. 25 the internet to customers who self-register on Dropbox’s website, 26 while Ironhawk attends military trade shows and obtains contracts 27 through military bidding processes. 28 parties “utilize sales people” and “maintain websites,” and thus 12 Dropbox markets via Ironhawk responds that both 1 the marketing channels are the same. 2 Ironhawk’s arguments fail. 3 retailer that did not advertise online, and the shared use of a 4 ubiquitous marketing channel does not shed much light on the 5 likelihood of consumer confusion.” 6 Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1151 (9th Cir. 2011). 7 Nor could any reasonable trier of fact rely upon the mere fact that 8 both parties employ a sales staff to conclude that the parties’ 9 similar marketing channels increase the chance of confusion. 10 “Today, it would be the rare commercial Network Automation, Inc. v. This factor weighs against such a likelihood. 11 12 (Opp. at 20:26-27, 21:2-3.) 6. Sophistication of Consumers It is undisputed that the only user of Ironhawk’s product is 13 the United States Navy, and that it takes years for the Navy to 14 approve Ironhawk’s proposals, and only then after numerous meetings 15 with technical crews. 16 Ironhawk’s SmartSync licenses cost thousands and tens of thousands 17 of dollars. 18 modest, the high degree of care exercised by the Navy, particularly 19 for such expensive products as Ironhawk SmartSync licenses, weighs 20 heavily against likelihood of confusion. 21 22 7. It is also undisputed that some of Although the cost of Dropbox services is much more Intent It is undisputed that Dropbox was not aware of Ironhawk when 23 the former chose the name Smart Sync. 24 Dropbox and its trademark counsel were aware of Ironhawk and its 25 SmartSync product by the time Dropbox launched its Smart Sync 26 feature. 27 the feature under the name Smart Sync, Dropbox had any intention of 28 capitalizing on Ironhawk’s goodwill. Nor is it disputed that There is no evidence, however, that in going forward with 13 See M2 Software, Inc. v. 1 Madacy Entm’t, 421 F.3d 1073, 1085 (9th Cir. 2005) (finding no 2 evidence of bad intent where alleged infringer had notice of 3 similar mark but chose to proceed with independently-derived name 4 in belief that use was non-infringing). 5 An intent analysis is slightly different in the reverse 6 confusion context, where neither party seeks to capitalize on the 7 goodwill of the other. 8 F.3d 927, 934 (9th Cir. 2017). 9 shown by evidence that, for example, the defendant knew of the Marketquest Grp., Inc. v. BIC Corp., 862 In such a case, bad intent can “be 10 mark, should have known of the mark, intended to copy the 11 plaintiff, failed to conduct a reasonably adequate trademark 12 search, or otherwise culpably disregarded the risk of reverse 13 confusion.” Id. at 934-35. 14 improper intent with respect to reverse confusion. 15 intent factor weighs against likelihood of confusion on Ironhawk’s 16 forward confusion theory, but slightly in favor of likelihood of 17 reverse confusion. 18 19 8. On this record, a jury could find Thus, the Expansion of Product Lines “[A] ‘strong possibility’ that either party may expand his 20 business to compete with the other will weigh in favor of finding 21 that the present use is infringing.” 22 It is undisputed that Dropbox has no intention to expand into the 23 military market. 24 commercial customers, it did have a commercial customer in 2013. 25 Ironhawk also argues that it plans to expand beyond the military 26 market and re-enter the consumer market, and Ironhawk’s CEO states 27 that he has engaged in discussions with non-military clients 28 regarding SmartSync. Sleekcraft, 599 F.2d at 354. Although Ironhawk is not currently used by any Given Ironhawk’s lack of success in obtaining 14 1 non-military clients and the lack of detail regarding recent 2 discussions, however, this court cannot conclude that Ironhawk has 3 presented evidence of a “strong possibility” of expansion into the 4 consumer market. 5 9. The expansion factor is, therefore, neutral. Balance of the Sleekcraft Factors 6 The overwhelming balance of the Sleekcraft factors weighs 7 against a likelihood of confusion between Ironhawk’s SmartSync mark 8 and Dropbox’s Smart Sync. 9 little or no protection. Ironhawk’s weak mark is entitled to Although the marks are similar, the 10 consistent use of the parties’ respective business names alongside 11 the marks weighs against a likelihood of confusion. 12 products are significantly different, and Ironhawk’s sophisticated 13 single user exercises a high degree of care in its SmartSync 14 purchases. 15 significant difference in the parties’ marketing channels further 16 weigh against a likelihood of confusion. 17 factor may weigh somewhat in favor of a likelihood of confusion in 18 the reverse confusion context, it is not sufficient to offset the 19 combined weight of the remaining factors, particularly in light of 20 the conceptual weakness of the Ironhawk mark. 21 reasonable trier of fact could not conclude that Dropbox’s use of 22 Smart Sync is likely to cause consumer confusion. 23 therefore, prevail on its infringement claims. 24 IV. 25 26 The lack of any evidence of actual confusion and the Although the intent On this record, a Ironhawk cannot, Conclusion For the reasons stated above, Dropbox’s Motion for Summary Judgment is GRANTED. 27 28 The parties’ IT IS SO ORDERED. 15 1 2 Dated: 10-24, 2019 DEAN D. PREGERSON United States District Judge 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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