In a traditional trademark infringement case, the senior user of a mark claims that consumers will be confused into believing the junior user’s goods or services are from the same source (i.e. the senior user) or somehow connected to the senior user’s goods or services. In a “reverse confusion” case, the senior user claims that the junior user’s goods or services will overwhelm the market and basically destroy the senior user’s mark.
On July 18, 2018, a company called Vibes Media LLC filed a lawsuit in Illinois federal court against KKW Fragrance LLC, Kim Kardashian’s fragrance line, for “reverse confusion.” In the lawsuit, Vibes claims that KKW intentionally infringed on its registered trademarked logo, a blue speech bubble with the word “vibes” written in white lowercase. Vibes alleges that KKW’s design of a black speech bubble with the word “vibes” written across it in white uppercase with a slight rainbow penumbra on its “Vibes” perfume creates “a strong likelihood that consumers will be confused into believing that Defendant’s Vibes perfume is Plaintiff’s product or that it is authorized, endorsed, sponsored, or approved by Plaintiff,” or conversely that the marketing company is somehow affiliated with Kardashian.” In other words, Vibes claims that because of KKW’s affiliation with the famous Kim Kardashian, consumers will mistakenly believe Vibes’ products are affiliated with KKW, creating “reverse confusion.” In addition to seeking monetary damages, the lawsuit asks the court to issue an injunction to stop KKW from continuing to sell the fragrance.
An interesting twist on “reverse confusion” cases is that in a typical infringement case, the stronger the senior user’s mark is, the more likely it is to prevail; whereas, in a “reverse confusion” case, the opposite may be true. In other words, the junior user’s mark must “swamp” the market, thus overwhelming the senior user’s mark and good will.
It is unclear how this case will turn out. Similar to any trademark infringement case, the junior user alleging “reverse confusion”—here Vibes—will have to prove consumer confusion between its goods or services and KKW’s “Vibes” perfume. If Vibes does not market or sell products competitive with KKW’s perfume, it may be difficult for Vibes to prove consumer confusion. However, as Kim Kardashian’s presence is ubiquitous these days, the “swamping” effect does not appear too challenging to establish.