In our continuing coverage of cases that are making their way up to the Sixth Circuit, we noticed this recent appeal from the Western District of Michigan, Martha Elizabeth, Inc. v. Scripps Networks Interactive, LLC. The case pits an owner of a retail business specializing in products for the home chef that uses the trademark “Bitchen Kitchen” against a media outlet that controls the Food Network and produces a television cooking show entitled “Bitchin’ Kitchen”. While in many respects this case has the attributes of a traditional Lanham Act dispute over likelihood of confusion over two competing marks, there is another element in play in the court’s decision. After concluding that the plaintiff was likely to succeed in showing likelihood of confusion, the court nevertheless declined the predominant injunctive relief sought by the plaintiff based on the defendant’s First Amendment arguments. In this respect, the upcoming appeal will feature a clash between the Lanham Act trademark infringement policies versus constitutional freedom of speech. From a cursory review of the decision, it appears that this could present the Sixth Circuit with an issue of first impression. Another noteworthy aspect of the court’s decision was that, in discussing the likelihood of the confusion, the district court referenced its own internet searches for both names using traditional search engines. This poses the question with which both judges and lawyers alike must wrestle regarding the creeping influence of technology and the irresistible urge to simply run Google searches (which has resulted in high profile problems in jury trials). It remains to be seen whether that aspect of the court’s ruling will receive attention at the Sixth Circuit. In any event, this case certainly presents some interesting issues for the Sixth Circuit and we will continue monitoring it.
