Virginia Technology Firm Sued for Trademark Infringement

Vienna, Virginia-based Immersonal, Inc., a consumer software and technology services company, has been sued for trademark infringement and related claims in Virginia federal court. Radio and Podcast personality, Ira Glass, and Chicago Public Media say Immersonal’s new “This American Startup” podcast infringes on their award-winning “This American Life” radio and podcast programs. The suit includes counts for trademark infringement and dilution, unfair competition and fraud, and violation of the Virginia Consumer Protection Act.

According to the complaint, Mr. Glass has produced, aired, promoted and distributed the radio show, “This American Life,” since 1996. The show is part of the lineup of Chicago Public Media, an Illinois not-for-profit corporation, which has owned and operated a radio station since 1990. “This American Life” is a Peabody award-winning syndicated program on contemporary American culture, including fiction and nonfiction and original monologues, mini-dramas, documentaries, music and interviews. It is also available on the internet as a podcast and is downloaded about 700,000 times per week. In many weeks, it is the ThisAmericanLife.jpgmost popular podcast in the country. The program was turned into a television show between 2006 and 2008 and garnered several Emmy awards.

The plaintiffs allege further that the mark, “This American Life,” has been in continuous use since 1996 in entertainment and in connection with the audio program. The plaintiffs co-own this and related marks and have expended significant money and air time to promote and advertise their marks in various media. They say these efforts, combined with quality programming, have led consumers to associate “This American Life” with quality service. In turn, this acceptance and good will has opened the door to additional business opportunities associated with the marks. The plaintiffs claim the mark is famous given its duration of use, reach, extensive consumption and recognition.

Earlier this year, Immersonal filed a trademark application to use the name, “This American Startup.” It then began distributing a biweekly podcast online using this name. The podcast offers business tips, entrepreneurial stories, and advice on turning ideas into business startups.

The U.S. Patent and Trademark Office refused Immersonal’s application because “This American Life” and “This American Startup” were “so similar in their appearance, sound connotation, and commercial impression, that there is likelihood of confusion.” The examining attorney cited the identical “This American” name prefix as well as the similarity of the services both offered. Further, the possibility that This American Life could also use the podcast format and offer entrepreneurial information could lead to confusion among consumers. The plaintiffs say they do, in fact, communicate through podcasts and cover entrepreneurial issues.

Mr. Glass and Chicago Public Media say they asked Immersonal to discontinue using the similar phrases and to abandon its efforts to obtain the “This American Startup” trademark but that Immersonal indicated it would continue using the name and pursuing the trademark. Immersonal had been posting podcasts every two weeks but has not added any to its website since July 14th.

Glass and Chicago Public Media claim Immersonal is trading on “This American Life” fame and success. They say Immersonal’s mark misleads, deceives and confuses the public into believing “This American Startup” is associated with and an approved by “This American Life” and thereby weakens their well known marks. They further assert Immersonal is harming their reputations and diluting the “distinctive quality” of their trademarks. They seek an injunction preventing Immersonal from using the “This American Startup” name and have asked for various damages and attorneys fees.

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