Power Balance Sues Microsoft for Trade Dress Infringement
On November 1, Power Balance, a purported specialist in “hologram performance technology,” sued Microsoft in the Central District of California under both state and federal law claims including unfair competition, trade dress infringement, false designation of origin and unfair business practices. Power Balance is seeking both temporary and permanent injunctive relief, damages, and other relief for misappropriation of its trade dress in silicone wristbands containing holograms.
According to Power Balance, it has “pioneered the market for silicone hologram wristbands, gaining an international reputation and popularity for its products.” The company cites widespread use by “celebrated professional athletes and other media figures” claiming that “[e]very day, famous athletes seeking to maximize their performance become public fans of this new and innovative product.” The lawsuit classifies wristbands developed by Microsoft in connection with its XBOX KINECT product as “knock-off products” that mimic its “famous hologram wristbands, which promote balance, strength, and flexibility.”
Power Balance alleges that Microsoft plans to capitalize on both the goodwill and fame Power Balance has developed in the worldwide market for performance hologram wristbands, pointing to a number of features of the Microsoft wristband that they characterize as “confusingly similar to Power Balance’s product.” The complaint includes a (rather grainy) photo that compares Microsoft’s wristband and its own side by side.
Power Balance contends that when it became aware on October 29, 2010 of Microsoft’s plan to begin November 4, 2010 distribution of the allegedly infringing wristbands in connection with the launch of its Xbox Kinect game system, Power Balance immediately sent cease and desist letters to both Microsoft and Best Buy (which is purportedly responsible for direct distribution of the wristbands to consumers). The complaint notes that Power Balance has yet to receive a response containing an indication of compliance with its demands. In its filing, Power Balance asserts that “[i]f a company like Microsoft is permitted to go forward with a massive launch into commerce of products bearing Power Balance’s trade dress, the instant and widespread marketplace confusion will be permanently damaging to Power Balance.”