Interlocking X’s Mark the Litigation Spot

by Greenberg Glusker Fields Claman & Machtinger LLP

So what does the world’s largest publicly traded international oil and gas company have in common with the cable network that’s brought us such irreverent comedies as It’s Always Sunny In Philadelphia, Louie, and The League?  One fuels America’s engines, while the other arguably powers the laughter of millions of viewers (among which this blogger can certainly be counted).  But the similarities don’t stop there!  Turns out they both have a fondness for the letter “X”; specifically, two letter “X’s” interlocked along a diagonal line – and this may be a real problem for one of them.

ExxonMobil Claims Fox’s FXX Network Logo Constitutes Trademark Infringement

Oil and gas behemoth ExxonMobil has sued FX Networks in the United States District Court for the Southern District of Texas over the logo FX bestowed onto its newly launched network FXX.  Exxon alleges the FXX logo infringes on Exxon’s own logo featuring two interlocking X’s along a diagonal line sloping downward, left to right.

The FXX logo features a similar interlocking double X design that FXX is in the process of trying to register (though, to be nit-picky, these X’s connect along a diagonal sloping upward, left to right).

So what’s got Exxon’s gas pumps in a twist?  Well, according to Exxon, the FXX logo infringes on Exxon’s trademark, causing customer confusion, dilution of the trademark, unfair competition, and the unjust enrichment of FXX.  Exxon contends that it registered this interlocking X design and that it’s been in continuous use by the company for decades to designate its “famous” fuel pumps and gas stations “uniquely” associated with Exxon goods and services.  Judging from Exxon’s complaint, Exxon is especially perturbed that FXX has used the interlocking X’s standing alone in some of its recent promotions.  According to Exxon, Exxon has exclusive ownership over these interlocking X’s.

Could Interlocking X’s Be Owned Exclusively by Exxon?

It may seem surprising, but the short answer is yes, the interlocking X’s could be exclusively owned by Exxon.  The longer answer is that even a single letter standing alone can be protected as a trademark (“S” for Singer sewing machines is one well known example).  Also favoring Exxon’s position is the protections allowed for distinctive lettering styles, such as the way the XX’s interlock.

But – you may say – the double interlocking X’s here are different.  After all, FXX connects them going upward, while Exxon connects them going downward.  The key here is whether there is any likelihood that the two interlocking X’s, in any formation, could lead to confusion in the marketplace.

Trademark law protects trademark owners and consumers from confusion that may arise when marks are similar, even when those marks appear on goods that are not in direct competition with one another (as in this situation where we have gas stations who offer gas challenging the logo of a cable network offering hilarious programming).

One reason for this protection is to prevent even subconscious mistakes among present or potential customers that the products come from a common source, when they in fact do not.  Another reason is to prevent these customers from believing that an affiliation exists between the two companies that does not; or that one company sponsors or approves of the other company’s product, when it has or does not.  Yet another reason (albeit a contested one) is to protect trademark owners’ ability to expand and offer products that are competitive with the other company, should it wish to ever do so sometime in the future (in other words, protecting any potential plan Exxon may have to start a cable television network in the future).

Here, the fact that FXX’s logo is somewhat different than Exxon’s may not be enough to support an argument that there can be no likelihood of confusion.  However, the remote connection between the two industries (oil and gas, on the one hand, and cable television on the other) may militate in favor of FXX.  This seems to be the view of FXX, at least, who released the following statement in response to the lawsuit it characterizes as “entirely meritless”:

“It is unfathomable that a consumer would confuse Exxon’s logo, from the world’s largest oil and gas company with FXX, the new networks that brings viewers such award-winning original television as ‘It’s Always Sunny in Philadelphia’ and ‘The League,’ to name a few. We are confident that viewers won’t tune into FXX looking for gas or motor oil and drivers won’t pull up to an Exxon pump station expecting to get ‘It’s Always Sunny in Philadelphia.’”

So who has the better argument?  Much like a wise colleague of mine, in times of doubt, I turn to Learned Hand.  Describing the outer bounds of trademark infringement concerning noncompetitive goods in a 1934 case finding that a razor blade mark infringed on a similar fountain pen mark, Learned Hand stated:

“There is indeed a limit; the goods on which the supposed infringer puts the mark may be too remote from any that the owner would be likely to make or sell. It would be hard, for example, for the seller of a steam shovel to find ground for complaint in the use of his trademark on a lipstick.”

Hard, but theoretically not impossible.  Who knows?  Maybe Exxon will be able to convince a jury that the similarity of the logos has resulted in customer expectation of oil and gas on television and television at the gas pump after all.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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