On April 11, 2014, Physical Enterprises, Inc. (“Mio Global”), a Canadian corporation, brought a trademark infringement action against Smartmissimo Technologies, PTE. LTD. (“Smartmissimo”), a Singapore corporation in the Northern District of Georgia. The complaint asserts international registrations and long term use of well-know Mio® marks, including seven U.S. trademarks. Smartmissimo is accused of intentionally infringing Mio Global’s mark. A sample Mio® mark and the Smartmissimo use are set forth below:
In addition to federal trademark infringement, the case asserts unfair competition under the Lanham Act, deceptive trade practices under Georgia law (and other unspecified states), and trademark infringement and unfair competition under Georgia common law (and that of other unspecified states).
Mio Global, according to the complaint, is an industry leader in making and selling wearable athletic training and fitness devices, including, for example, the Mio® heart rate watches. Mio Global has been making these devices since 1999 and owns the following relevant trademark registrations from the United States Patent and Trademark Office:
2,970,869 (issued July 19, 2005),
3,397,728 (issued March 18, 2008),
4,007,228 (issued August 2, 2011),
3,680,505 (issued on September 8, 2009),
3,661,562 (issued July 28, 2009),
3,667,326 (issued August 11, 2009), and
3,661,561 (issued July 28, 2009). In 2013 Mio Global sold millions of dollars worth of devices bearing these marks.
Mio Global alleges that Smartmissimo is offering devices with “mio” as a part of the mark that use the same coloring scheme as Mio Global products, are in the same niche market of wearable athletic training and fitness devices, and have been reviewed by the same publications reviewing Mio Global products, such as TechCrunch.com. According to Mio Global the two companies sell their products through “identical and overlapping channels.” Mio Global accuses Smartmissimo of intentionally utilizing the Mio Global mark to mislead both consumers and investors to make sales or raise funding. Mio Global’s use of the mark predates Smartmissimo’s use by 15 years.
Mio Global seeks an injunction, a product recall, an accounting, profits, improperly raised funds, damages, enhanced damages, punitive damages, prejudgment interest, and attorneys’ fees.
The case is Physical Enterprises, Inc. v. Smartmissimo Technologies, PTE. LTD., No. 1:14-cv-01090-TWT, filed 04/11/14 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, and has been assigned to U.S. District Judge Thomas W. Thrash, Jr.
