California - Market Street Press Inc. slapped Google Inc. with a trademark infringement suit last week alleging Google's ad campaign for its new Nexus 7 tablet infringes Market Street's trademark for the phrase "The Playground Is Open."
Market Street has been using the trademark for over four years, whereas Google has only recently picked it up for the new ad campaign, the complaint in the Middle District of North Carolina, filed Sept. 12, says.
"Notwithstanding Market Street's prior trademark rights, and in violation of Market Street's rights, Google embarked upon a massive advertising campaign utilizing, and otherwise adopted, the identical mark The Playground Is Open for its newly introduced Nexus 7 tablet, resulting in unfair competition, likely confusion, and likely reverse confusion," Market Street says.
Market Street designs, prints and sells a wide variety of promotional, marketing, office and creative products. Its offerings range from business products like marketing banners, pens, deskpads and paper cubes, to ping pong balls and puzzle cubes, to computer peripherals and accessories like USB flash drives, USB key chains, mouse pads and kiosks for tablets, computer screens and other display screens.
The company says it adopted "The Playground Is Open" as a trademark and indicator of source for all of its services and products at least as early as January 2008. Market Street filed a federal application to officially register the trademark on Aug. 20, which remains pending.
Google recently selected, adopted and began using the trademark in connection with its new Nexus 7 tablet, and subsequently launched a multimillion dollar nationwide promotional campaign advertising the tablet with the trademark, Market Street says. Infringing uses occurred during the widely watched television coverage of the 2012 Summer Olympics, for example, the company says.
Due to that ad campaign, the media and general public have quickly come to associate the trademark phrase with Google rather than Market Street, the complaint alleges. Google's use of the trademark will make Market Street's use of the same trademark look like it is in some way connected with Google, or even infringing Google's trademark rights in an effort to capitalize on Google's reputation, Market Street says.
Because of Google's disproportionately larger size, advertising budget, resources, promotion campaign and dominance on the internet, its use of the trademark will continue to "overwhelm and swamp" Market Street's use of the phrase, the complaint says.