Aevoe has filed a trademark infringement and false designation of origin lawsuit against numerous entities accused of selling iPad and iPhone accessories bearing its Moshi®, stylized M and iGlaze trademarks. Aevoe manufactures peripherals and accessories for portable electronic devices and computers that are sold through Apple, AT&T, and its own online retail store. It alleges that its Moshi® branded products have garnered extensive media coverage and Aevoe has built up and developed significant goodwill and trademark recognition in its entire product line. And in light of this success, it’s alleged that the Moshi® trademark and products have become targets for unscrupulous individuals and entities who wish to take a ‘free ride’ on Aevoe’s goodwill.
Aevoe is accusing numerous eBay sellers of selling counterfeit or imitation goods bearing its trademarks: “Defendants maintain and operate a storefront or webpage on eBay.com [through which] Defendants regularly and systematically advertised, marketed, distributed and sold products bearing unauthorized MOSHI® registered trademarks.” Regarding one defendant, E & D International Trade, Inc., Aevoe’s investigator purchased a “red Moshi iGlaze 4 back case cover for iPhone 4 4G” from E&D. Upon inspection, “security measures confirmed that the item defendants sold was in fact a counterfeit.” Thus, Aevoe contends, “Defendants’ actions have confused and deceived, or threatened to confuse and deceive, the consuming public concerning the source and sponsorship of the counterfeit ‘red Moshi iGlaze 4 back case cover for iPhone 4 4g’ sold and distributed by Defendants. By their wrongful conduct, Defendants have traded upon and diminished Plaintiff’s goodwill. Furthermore, the sale and distribution of counterfeit goods by Defendants have infringed upon Plaintiff’s federally registered trademarks.”
In addition to its trademark infringement and unfair competition claims, Aevoe asserts a claim for trademark dilution, which appears to be susceptible to a motion to dismiss. To establish a trademark dilution claim, Aevoe must allege that “(1) the mark is famous and distinctive; (2) the defendant is making use of the mark in commerce; (3) the defendant’s use began after the mark became famous; and (4) the defendant’s use of the mark is likely to cause dilution by blurring or dilution by tarnishment.” Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 634 (9th Cir. 2008). Under the Trademark Dilution Revision Act of 2006, however, a dilution cause of action is reserved for only the most truly prominent brands, such as Coca Cola, Apple, AT&T, or Sony, and it does not appear that Moshi is such a prominent, household name to survive a motion to dismiss.