Fitbug Files Complaint Against Fitbit, Alleging Trademark Infringement

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Category: Business/Financial News

Published on Sunday, 21 April 2013 17:06

The company alleges that Fitbit’s use of its trademark is infringing on Fitbug’s rights and causing consumer confusion, and has asked the U.S. District Court in Northern California to order Fitbit to permanently cease use of its Fitbit mark and from engaging in conduct that is causing confusion with Fitbug’s brand and services.

Chicago (April 19) -- Fitbug, the online health and wellness coach launched in 2005, has filed a complaint against Fitbit Inc., alleging trademark infringement, as well as unfair competition and unfair business practices that it claims have caused irreparable harm and damage to the company. It has asked the court to order Fitbit to permanently cease the use of its Fitbit mark and from engaging in conduct that is causing confusion with Fitbug’s brand and services.

Fitbug helps individuals improve their lifestyles by making gradual and realistic changes to their daily routine. The company combines activity tracking devices, which upload to www.fitbug.com to log users’ daily activity achievements, with web and mobile technology that offer personalized weekly activity and nutrition targets, feedback, advice and encouragement. Fitbug was one of the first to combine portable electronic tracking devices, nutrition advice, digital coaching and the Internet to enable users to become physically fit and lose weight. Its newest product, the Fitbug Orb that was unveiled at the Consumer Electronics Show (CES) in Las Vegas incorporates eight years of feedback from the company’s users.     

The company began using its trademark “Fitbug” in the U.S. starting in 2005, and owns two U.S. registrations for its mark. These registrations cover Fitbug’s pedometers, the online services that Fitbug provides to consumers, and software used in connection with the assessment and monitoring of users’ fitness and training programs. At all relevant times, the company’s devices and website were prominently marked with the Fitbug mark.

The lawsuit alleges that about four years after Fitbug began its operations in the U.S., and three years after Fitbug obtained its first U.S. registration, Fitbit began distributing fitness-related portable electronic devices and online services that were identical, or near identical, to Fitbug’s.

The Fitbug mark, and the goodwill associated with it, is of inestimable value to the company. Fitbug said in its complaint that it is concerned that Fitbit’s activities have created and fostered the false impression that the goods and services it sells in connection with the Fitbit mark originate from, are affiliated with, or are approved by Fitbug, and that the resulting confusion caused by the nearly identical names, marks and services is damaging Fitbug’s business.

As an example, Fitbug said that in the past 12 months, the company received a high volume of customer service calls and emails from consumers seeking assistance with their Fitbit devices. Media publications and social media sites have also confused the respective products in their reports. Even potential business partners have expressed confusion. In several instances, prospective partners thought they were discussing a business opportunity with Fitbit, when they were actually engaged in discussions with Fitbug, the complaint said.

According to the complaint, Fitbit has also consistently used a logo, icons, photographs and imagery that were markedly similar to Fitbug’s original logo, icons, photographs and imagery. They were placed on user manuals and packaging, as well as on Fitbit’s website, where many of the diagrams that are used to depict an individual’s activity and food intake are nearly identical to the diagrams used by Fitbug on its website.

The Fitbug and Fitbit marks differ by just two letters, and until recently were both displayed with blue dots over the letter “i” and in similar fonts. Exhibits from the lawsuit demonstrating these examples can be viewed here: http://media.fitbug.com/tm.pdf

The action taken by Fitbug arises under the provisions of the Trademark Act of 1946 for trademark infringement and unfair competition, and under California state law for unfair competition and business practices. The lawsuit was filed in United States District Court in Northern California on March 29. Fitbug is based in London, and operates in the U.S. from its office in Chicago. Fitbit has yet to respond to the allegations.

Fitbug is represented by attorney Mark J. Rosenberg of Tarter Krinsky & Drogin LLP in New York and Covington & Burling LLP in California.