Access Designs, Inc.,
a company that manufactures TubcuT®, a product that alters regular bathtubs to
convert them into walk-in showers, has filed a trademark-infringement suit against The BathWorks Company in
federal district court in Charlottesville, Virginia. According to the
allegations of the Complaint, two former representatives of Access Designs,
Greg and Ellen Murphy, formed BathWorks in Rhode Island and began selling a
product similar to TubcuT® and marketing it under the name "Tubcut" or
"Tubcuts", creating a likelihood of confusion in the marketplace with respect to
the origin of the customized bathtubs.
The suit is based on
the provisions of the Lanham Act that
govern trademark infringement and unfair competition, 15 U.S.C. §§ 1114 and 1125(a). To win on both allegations, Access Designs must prove
three things: (1) that its mark is valid, (2) that The BathWorks Company's use
of the mark is unauthorized, and (3) that BathWorks' use of the mark is likely
to cause customers to be confused.
Access Designs has a
little bit of a head start in that TubcuT® is registered with the Patent and
Trademark Office, as registered marks carry a presumption of validity. The key
issue in the case is likely to be whether BathWorks is using a mark that is
likely to cause confusion among consumers as to the source of the parties'
respective products. To determine the likelihood of consumer confusion, courts
generally consider factors such as (1) the strength of plaintiff's mark; (2) the
relatedness or "proximity" of the parties' goods or services; (3) similarity of
the parties' marks; (4) evidence of actual confusion; (5) marketing channels
used; (6) the degree of care likely to be exercised by purchasers; (7) the
defendant's intent in selecting the mark; and (8) the likelihood of expansion of
Whether or not Access
Designs can prove its allegations at trial remains to be seen.