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Mobile Marketing Vehicle Infringement Suit Runs Out of Gas

On April 6, 2020, U.S. District Judge J. Paul Oetken (S.D.N.Y.) granted defendant Aardvark Event Logistics, Inc’s motions to exclude plaintiff Bobcar Media, LLC’s expert testimony and for summary judgment, dismissing all of Bobcar’s remaining claims.

Bobcar owns technology and designs for “mobile marketing vehicles,” or “Bobcars,” that have panels that open to reveal a mobile showroom.  Aardvark is a marketing firm that also offers mobile marketing vehicles that go by the name “Aardy.”  Bobcar sued Aardvark in February 2016, alleging infringement of U.S. Patent Nos. 7,942,461, 8,220,854, 8,690,215, D652,353, D678,823, and D736,675, as well as trade dress infringement, and unfair competition under the Lanham Act and New York law.  In January 2019, Judge Oetken dismissed all patent infringement claims for lack of standing. 

First, Judge Oetken granted Aardvark’s motion to exclude Bobcar’s consumer behavioral expert’s testimony.  Although holding that, in general “a consumer behavioral expert is not so irrelevant as to be unqualified to testify to help the jury determine whether there exists likelihood of confusion, secondary meaning, or functionality,” the court excluded the expert’s testimony “because each section of the report ultimately draws legal conclusions based on evidence that is seemingly not analyzed in any meaningful way.” 

To succeed on its trade dress infringement claim, Bobcar had to show “(1) the claimed trade dress is non-functional; (2) the claimed trade dress has secondary meaning; and (3) there is a likelihood of confusion between” Bobcar’s and Aardvark’s mobile marketing vehicles.  As an initial matter, the court found that, because Bobcar’s customers are interested in the vehicle itself, and not the products being promoted by the Bobcar, the claimed trade dress was the product’s design, as opposed to the product’s packaging.  Bobcar was thus required to show that the trade dress had acquired secondary meaning, which requires analyzing “(1) advertising expenditures, (2) consumer studies, (3) unsolicited media coverage of the product, (4) sales success, (5) attempts to plagiarize the mark, and (6) length and exclusivity of use.”  The court found that each factor weighed against Bobcar, except for Bobcar’s “robust” sales success.  But because “sales success alone cannot establish secondary meaning,” the court granted Aardvark summary judgment on the trade dress infringement claim.  And because Bobcar’s unfair competition claims under the Lanham Act and New York law are subject to the same analysis, the court dismissed those as well.

Case:  Bobcar Media, LLC v. Aardvark Event Logistics, Inc., 16-CV-885 (S.D.N.Y.).