Becoming v. Avon

Citation: Becoming, Inc. v. Avon Prods., Inc., 2001 U.S. Dist. LEXIS 11929 (S.D.N.Y. Aug. 15, 2001).

Factual Background
Plaintiff sold products specifically designed for breast-cancer patients and survivors, including clothing and wigs, under its trade name “Becoming, Inc.” by mail-order catalog and through its website at “becoming.com.” Plaintiff also sold skin-care products, hair products, aroma-therapy candles, CDs, and a post-menopause mineral supplement. All of the products that plaintiff sold, except for the mineral supplement, bore others’ trademarks.

Plaintiff offered the supplement under the mark OONA but included its company name in small print on the side of the bottle. Defendant planned to sell beauty products bearing the trademark “beComing” in JC Penney department stores around the nation.

Trial Court Proceedings
Plaintiff sought a preliminary injunction to stop defendant’s imminent launch of its “beComing” products. The court denied plaintiff’s motion because it failed to demonstrate “that a significant danger exist[ed] that an appreciable number of consumers will be confused.” The court was particularly influenced by the weakness of the name “BECOMING”; the differences in the parties’ products, consumers, and channels of trade; and defendant’s use of the house mark AVON on its products and on the store displays for its products.

In rejecting plaintiff’s reverse-confusion argument, the court noted that it was difficult to see how plaintiff’s reputation or goodwill was endangered by defendant’s planned product launch. Plaintiff’s products were specifically geared toward breast-cancer survivors and sold exclusively by catalog and through the Internet, whereas defendant’s “beComing” product line was not geared toward cancer survivors and was planned to be sold exclusively in department stores. Thus, women in search of products to assist them during their cancer recovery were unlikely to be deterred from purchasing plaintiff’s products by defendant’s “beComing” line.

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