Puma v. Brooks Court Battle Over the Word ‘Nitro’ Changes Venue – Sourcing Journal

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The still warming court battle between Puma and Brooks is getting a new venue.

U.S. District Court of Southern Indiana Judge Richard L. Young, on Friday, granted Brooks’ request to move the trademark infringement suit filed in Indiana by Germany-based Puma in July to Washington state, the home to the bulk of Brooks’ operations, including its executive team, those who would most likely be called as witnesses.

At issue are a pair of complaints filed by Puma, one regarding infringement of the design of its Nitro-branded shoes, but perhaps even more important Brooks’ use of the word “Nitro” in its own nitrogen-infused foam technology.

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An advertisement for Brooks’ nitrogen-infused foam running shoe, which Puma says is an infringement of its copyright.
Courtesy of Brooks

In its original court filing, Puma attorneys say they filed suit in the Hoosier state because Brooks has a 400,000 square-foot distribution center in Whitestown, Ind.

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Judge Young said in his Friday ruling that considerable deference is usually given to plaintiffs when it comes to venue, but that in this case, Puma was “entitled to little deference” because it is not an Indiana corporation and only one of its more than 100 U.S. brick-and-mortar stores is in the Midwestern state.

Puma attorneys had contended that holding the relatively central location of Indiana would be more fair as the bulk of the German company’s U.S. headquartering is in Boston. Brooks attorneys argued that even if that was the consideration, there are many more direct flights from Boston to Seattle than Indianapolis, and Judge Young agreed.

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“Because Brooks will need to travel only if the court denies transfer and Puma will have to travel regardless of the court’s decision, the court finds the convenience factor weighs in favor of transfer,” Young wrote.

The Indianapolis law firm representing Puma did not immediately respond to Sourcing Journal requests for comment.

When the proceedings resume in the Western District of the U.S. District Court in Washington, the fight over usage of the mark “Nitro” will be at issue and an interesting test case in trademark law.

Nitrogen infusion is not a practice, nor term in any way unique to footwear. Coffee shops and breweries are just two of the many places where consumers can see the word “nitro” used both as a common adjective often included in brand names as well.

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On the other hand, Puma does own the trademark for Nitro, and its Nitro shoes are its No. 1 brand and a top-five selling brand in the U.S., according to the July complaint.

Even Brazilian footie star Neymar put his signature spin on a pair of Nitros.

Back in October Brooks replied to the suit arguing Puma could in no way trademark the term ‘Nitro,” and cited the U.S. Patent and Trademark Office’s own ruling that “nitro” is a descriptive shorthand term for “nitrogen,” it is not distinctive to the nitrogen-infused products of any company.

Brooks also contended that as to the trademark infringement of the design, the Puma Nitro is “plainly dissimilar” from the Brooks Aurora BL.

In September, Brooks settled a lawsuit filed against it by Skechers, in which the latter argued that Brooks had copied its “S” logo design.

Details of the settlement were not revealed.

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