Does Oprah Own the Power to Cause Reverse Confusion?

Oprah gets sued from time to time.  Back in the 1998 she was sued by Texas cattlemen for slandering meat.  Thankfully for free speech, she won.

This time Oprah is being sued in federal court in New Jersey for trademark infringement after she began to use the phrase OWN YOUR POWER as part of a motivational campaign in O Magazine, online and in ads.   Her production company is also named in the suit, along with the campaign’s partners including Wells Fargo and Clinique.  The plaintiff is Simone Kelly-Brown, who owns a trademark registration for OWN YOUR POWER in the light blue stylization shown above.   (Query whether this thin, lower-case style conveys a sense of power.)   Ms. Kelly-Brown provides motivational services and her trademark registration covers “Workshops and seminars in the field of entrepreneurship, marketing, business networking, and other small business matters; Conducting workshops and seminars in personal awareness; Conducting workshops and seminars in self-awareness; Conducting workshops and seminars in making the transition to becoming an entrepreneur; Entertainment services, namely, providing live and on-line radio programs in the field of making a transition to entrepreneurship”.

I’m among the millions who have high respect for Oprah, but I think her lawyers dropped the ball on this one .  The wording in the marks is identical.  The services are close.  This could rise to the level of reverse confusion, which occurs when the new user of a mark is so well-known and/or puts enough marketing dollars behind it that the mark becomes closely associated with the new user, and consumers think the first user’s product or service comes from the new user.   As a hypothetical example, imagine that the richest woman in entertainment, who has her own media conglomerate, starts to use and extensively advertise the trademark of a small motivational services company.  Oh, wait a second…

Oprah may own OWN, and she is quite powerful, but in this case I don’t think she owns the power.

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