Nautilus Group v. Icon Health & Fitness

Citation: Nautilus Group, Inc. v. Icon Health & Fitness, Inc., 2006 WL 3761367 (W.D. Wash. Dec. 21, 2006).

Factual Background
Plaintiff sold exercise equipment under the mark BOWFLEX, and defendant sold exercise equipment under the mark CROSSBOW. Plaintiff filed suit in 2002 alleging patent infringement and trademark infringement, false designation of origin, and federal and state dilution, among other claims.

Trial Court Proceedings
The trial court granted defendant’s motion for summary judgment on plaintiff’s federal and state dilution claims relating to defendant’s CROSSBOW mark and to defendant’s purchase of the keyword “BOWFLEX INFORMATION.” In particular, defendant argued that plaintiff’s federal dilution claim should be dismissed because plaintiff had not shown actual dilution. (This case was decided under the “actual dilution” test of the Federal Dilution Trademark Act and not the “likely to dilute” standard of the recently enacted Trademark Dilution Revision Act.)

The court rejected plaintiff’s argument that defendant “actually used the Bowflex trademark.” Regarding the keyword issue, the court initially stated that “[i]t is clear from defendant’s evidence that it purchased the keyword Bowflex only in the context of comparative advertising.” Specifically, searches for this keyword returned sponsored links titled “Compare CrossBow to Bowflex.” The text following this title “asked users to compare the two machines, and summarized what the CrossBow machine had to offer,” and the URL was listed as www.crossbow.com.

According to the court, “[i]t is well-settled in the Ninth Circuit that such use of a trademark is excepted from the reach of the statute.” The court cited the Ninth Circuit’s decision in Playboy v. Welles as “explaining that such uses do not create an improper association between a mark and a new product, but merely identify the trademark holder’s products.”

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