Fitbug lost the trademark suit it brought against Fitbit

By Brian Dolan
09:10 am
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Fitbug OrbFitbit has won the trademark infringement lawsuit case that UK-based Fitbug brought against it in March 2013, according to court documents posted last month. As it happens with cases like these, there were a number of claims and counterclaims, but the crucial blow to Fitbug's suit was that the company waited four and a half years -- too long -- to bring it to the court's attention.

"In this case, the Court finds that Fitbug knew or should have known of the likelihood of confusion by, at the latest, September 2008, after Fitbit's launch," the judge writes. "While Fitbit was not yet shipping its products, at that time, Fitbit was selling similar devices 'in the same geographic area under [a] remarkably similar name'. As a result, a prudent business person should have recognized the likelihood of confusion at that point."

The court document includes a number of interesting bits of trivia about Fitbit. The company was founded in March 2007 and its name was chosen after a poll conducted on Facebook. According to the court document, Fitbit CEO James Park said that at the time the name was chosen no one at Fitbit knew Fitbug existed. Later, by December 2007, however, Fitbit cofounder Eric Friedman sent Park an email that included a link to the Fitbug website. Park said that he thought little of the link at the time, according to the document.

Here are some more of the "undisputed facts" of the case, according to the court, including the time Fitbug CEO Paul Landau apparently referred to Fitbit as "thieving bastards": 

"Fitbit announced its products on September 9, 2008 and began receiving significant media coverage. By the next day, Fitbit's website was active and visitors to the site could see Fitbit's trademark, learn about its products, and place an order for the original Fitbit device. Beginning that day and continuing for some time after, individuals within and outside the Fitbug organization contacted Fitbug to point out Fitbit's entry in the market. Those emails refer to Fitbit as, among other things, '[a]nother competitor,' suggest aspects of Fitbit's user interface are a 'total ripoff,' and note that while Fitbit's entry into the market is '[n]othing to panic about, . . . [Fitbit] will become an issue and I'd rather be one step ahead.' In reference to Fitbit's announced products and user interface, a consultant wrote to Paul Landau, Fitbug's CEO, that Fitbit 'appears to be doing what Fitbug does but slightly more . . .' and noting that Fitbit 'appear[s] to only be available in the US.'"

"Over the next several months, Fitbug explored several potential responses to Fitbit. First, beginning two days after Fitbit announced its products, Fitbug's Chief Marketing Officer ("CMO") (unsuccessfully) attempted to contact Fitbit to discuss potential partnerships. Then, on October 14, in an email conversation with the CMO, an attorney said, 'I was wondering if they were infringing on your IP -- sounds like some improvements on your idea, but pretty close to [F]itbug including the name.' A month later a Fitbug employee wrote to Landau 'to remind [him] of Fitbit' because he was 'thinking of sending them a cease and desist.' Around the same time, Landau referred to Fitbit as 'thieving bastards[.]'"

"Nevertheless, Fitbit did not begin shipping its products to consumers until September 2009. After that point, Fitbug received several further emails regarding Fitbit's activities. For instance, another lawyer contacted Fitbug's CMO to point out that Fitbit 'could cause confusion in the classic trademark sense.' That statement -- that Fitbit's mark could cause consumer confusion -- is the crucial issue for determining when Fitbug knew or should have known of its potential cause of action."

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