On November 9, 2017, a nine-person jury in the Central District of California found Kia Motor Corp.’s high-tech “Drive Wise” vehicle add-ons were likely to cause confusion with Allstate Insurance Co.’s trademarked “Drivewise” driver safety program.
Allstate began a safe driving data and rewards program under the DRIVEWISE mark in 2010, and its trademark registration issued in April 2011. Under the program, drivers earn rewards or discounts for safe driving behavior based on information collected through the DRIVEWISE Mobile® Application or through Allstate’s telematics devices that connect directly to a vehicle’s computer.
Around 2015, Kia announced the “Drive Wise” sub-brand for its offerings of vehicle add-ons, such as parking assistance and lane departure warning systems, aimed at developing partially autonomous cars. In January 2016, Kia applied to register “Drive Wise” as a stylized design mark, and “Kia Drive Wise” as a word mark in August 2016. In February 2016, Allstate filed suit, asserting trademark infringement and unfair competition.
During a three-day trial in early November 2017, Kia acknowledged its knowledge of Allstate’s brand, but argued that the differences in the nature of its products and price point were sufficient to avoid any likelihood of confusion. Kia emphasized that consumers would spend thousands of dollars to purchase its products as compared to Allstate’s free mobile application and pointed to examples of peaceful existence of third parties under the same marks (i.e., DOVE for chocolate and soap) as examples that such coexistence was possible. Finally, it pointed to the lack of evidence of actual confusion as evidence that confusion was unlikely.
Allstate responded by pointing out that actual confusion is not a prerequisite to a finding of likelihood of confusion. Allstate witnesses testified to the company having spent around $400 million dollars on the program, and around $47 million on advertising from 2012 to 2106. It also noted that, regardless of the differences in the specific products, both provide services in the same market. The jury agreed with Allstate.
Following the jury verdict, the parties returned to court for the damages portion of the trial. Allstate does not seek monetary damages, but only to prevent any use by Kia going forward. Kia, however, argued that even if the Judge adopts the jury verdict, given the lack of actual confusion to date, there is insufficient evidence of irreparable harm to merit a permanent injunction.
The case is Allstate Insurance Co. v. Kia Motors America, Inc., No. 2:16-cv-06108-SJO-AGR (C.D. Cal.).
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