RXD Media LLC v. IP App. Dev.

At issue in this trademark case is the use of the IPAD mark in commerce.

Plaintiff RXD Media launched its website, ipad.mobi, in 2007 as a platform for note-taking. In 2016 RXD relaunched its website as ipadtoday.com, offering a wider array of services than previously. Both RXD and the defendants, Apple and its trademark subsidiary IP App, claim to have priority in the rights to use the IPAD mark in commerce. The Trademark Trial & Appeal Board found in Apple’s favor.

Because RXD didn’t produce new evidence pertinent to any disputed question of fact decided by the Board, this court reviews that decision under the substantial-evidence standard. The Board determined that RXD’s use of the IPAD mark was a descriptive composite that didn’t acquire secondary meaning before the constructive use dates. For de novo review, , RXD would have had to provide new evidence to suggest that a material aspect of these determinations was wrong. It didn’t do so. The Board reached its decision after a full trial and reviewing a voluminous record. Its opinion is thorough and supported by law.

Apple also has established a bona fide intent to use the mark. The company has produced its license agreement for the IPAD mark, and evidence that it had the capacity to produce its applied-for services. In the context of Apple’s brand and breadth of products and services, this evidence is sufficient to establish Apple’s bona fide intent to use.

In Apple’s counterclaims for trademark infringement, it has demonstrated that it owns IPAD as a valid, protectable mark and that there’s a likelihood of confusion between Apple’s mark and RXD’s mark. Its evidence includes a consumer survey that showed over 25 percent actual confusion.

Motion for summary judgment granted.

RXD Media LLC v. IP App. Dev., No. 1:18cv486, Mar. 27, 2019. EDVA at Alexandria (O’Grady).



Categories: Opinions, U.S. District Court - Eastern District of Virginia

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