International IP Holdings, LLC et al v. Green Planet, Inc.

Filing 35

OPINION AND ORDER denying without prejudice 23 Defendant's Motion for Summary Judgment setting deadline of 4/25/2014 for the parties to submit an agreed upon plan for targeted discovery. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

INTERNATIONAL IP HOLDINGS, LLC, and
INNOVATION VENTURES, LLC,
Plaintiffs,
Case No. 13-13988

v.
GREEN PLANET, INC.,
Defendant.
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OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
On September 17, 2013, Plaintiffs International IP Holdings, LLC and Innovation
Ventures, LLC filed a complaint against Defendant Green Planet, Inc., alleging that
Defendant’s product, “8 HR BUZZ,” infringed on Plaintiffs’ trademarks for “5-hour
ENERGY.” After discussion with the parties, the court suspended formal discovery
pending resolution of Defendant’s motion for summary judgment. The motion is fully
briefed and is now pending before the court.
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “In deciding a motion for summary judgment, the court
must view the evidence in the light most favorable to the non-moving party, drawing all
reasonable inferences in that party’s favor.” Sagan v. United States, 342 F.3d 493, 497
(6th Cir. 2003). Summary judgment, therefore, is not appropriate when “the evidence

presents a sufficient disagreement to require submission to a jury.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251–52 (1986).
This case focuses on the likelihood-of-confusion test, which is used to decide
“whether there has been trademark infringement, unfair competition, or false
designation of origin,” as well as whether there has been unfair competition under
Michigan common law and the Michigan Consumer Protection Act. Audi AG v.
D’Amato, 469 F.3d 534, 542 (6th Cir. 2006); Homeowners Grp., Inc. v. Home Mktg.
Specialists, Inc., 931 F.2d 1100, 1104–05 (6th Cir. 1991); Carson v. Here’s Johnny
Portable Toilets, Inc., 698 F.2d 831, 833 (6th Cir. 1983). There are eight factors for the
court to consider when ascertaining whether a likelihood of confusion exists:
(1) the strength of the plaintiff’s mark, (2) the relatedness of the goods or
services offered by the plaintiff and the defendant, (3) the similarity of the
marks, (4) any evidence of actual confusion, (5) the marketing channels used
by the parties, (6) the probable degree of purchaser care and sophistication,
(7) the defendant’s intent in selecting its mark, and (8) the likelihood of either
party expanding its product line using the marks.
Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 630 (6th Cir. 2002).
After reviewing Defendant’s motion, and the related briefing, it is clear that there
are factual disputes between the parties regarding the likelihood-of-confusion test that
preclude summary judgment at this time. Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment [Dkt. # 23] is
DENIED WITHOUT PREJUDICE.

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IT IS FURTHER ORDERED that the parties will submit an agreed-upon plan for
targeted discovery into the likelihood-of-confusion factors by April 25, 2014. The court
anticipates that this plan will propose a discovery cut-off of approximately August 29,
2014.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: April 18, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, April 18, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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