Inside Trademarks Trademark Analytics, Research & Strategy

You Don’t Know Quack (or Jack) Part II – Insights

The developing case between Jellyvision and Aflac regarding the allegedly infringing "You Don't Know Quack" Aflac minisite (with its three question Flash-based game) raises a few interesting questions:

Is Aflac really infringing the Jellyvision "You Don't Know Jack" trademark? 

What damage has Aflac's "You Don't Know Quack" campaign caused to Jellyvision?

Or has Aflac made some unfair gain by using a phrase similar to Jellyvision's? And how might the parties here ultimately resolve their dispute?

 Infringement - Is Aflac Liable?

The standard for determining whether there is infringement is whether or not there is "likelihood of confusion." This means that the use of a trademark in connection with the sale of a good or service constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or services, or as to the sponsorship, or approval of such goods or services.

In deciding whether consumers are likely to be confused, the courts will generally look at a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961).

So, in this case, Jellyvision will of course argue that Aflac's "You Don't Know Quack" minisite which features a Flash-based game is very similar to its "You Don't Know Jack" interactive online game.  Further, Jellyvision will highlight, as it does in its complaint, the closeness of the two marks in terms of phonetic sound, appearance, and even meaning in order to support their confusion claim.

Aflac, however, has a viable counter argument.  While marketing an Alfac "You Don't Know Quack" game to test users knowledge of various trivia in connection with selling such games would infringing, the use of the "You Don't Know Quack" mark in connection with marketing insurance services (a completely unrelated service) is not infringing.  Consumers are not likely to think that Aflac, a well-known insurance company, sells interactive online trivia games made by Jellyvision, a provider of interactive games.  Thus, Aflac will argue that it's ad campaign can peacefully co-exist with Jellyvision's game franchise.

Despite Alfac's possible counter, the court will ultimately look at the "likelihood of confusion" factors and apply them to this case.  It is important to note that Jellyvision really could have strengthened its position in this case had it previously filed for and received trademark protection for "You Don't Know Jack" covering interactive advertising and consulting services under class 35.

Nevertheless, one significant issue that will weigh against Aflac is that Jellyvision may no longer be viewed by consumers as just a provider of the interactive "You Don't Know Jack" game.  In recent years, Jellyvision has branched out beyond the core game it was known for and now considers itself  a multimedia production company that provides interactive advertising experiences to its clients.  A quick look at its corporate website shows that Jellyvision provides goods and services beyond games, including advertising and even a healthcare mentor service designed to be an interactive guide to help consumers choose between and understand health insurance plans.     

Although the two companies are clearly in different industries, the court may find that a consumer could reasonably believe that the interactive online game on Aflac's new "You Don't Know Quack" minisite was perhaps designed by or somehow affiliated with Jellyvision, the owner of the "You Don't Know Jack" trademark for games.  Thus, the court may conclude that there is likelihood of confusion among consumers.

Click Here for More on our Damage Analysis and Expected Settlement Value

Damage - Will be Tough for Jellyvision to Show Without Quantifiable Evidence

Even if the court finds that the quiz game in Aflac's "You Don't Know Quack" ad campaign site infringes Jellyvision's trademark rights, how much, if any, damage has Aflac's ad campaign really done to Jellyvision.

We believe that it will be difficult for Jellyvision to show that the traffic  to Aflac's ad campaign site (or profit generated to the extent that there is any) is attributable to (1) consumer confusion between Aflac's ad campaign and Jellyvision's trademark, or (2) Aflac trading off of the goodwill of Jellyvision trademark.   Given how well Aflac is known for insurance, and the brand recognition consumers have for Aflac's iconic "Duck" character, it is far more likley that consumers are drawn to Aflac's ad campaign (whch includes much more than a website) because of the Duck.  And the play on the word "Jack" by substituting "Quack" simply reinforces the Duck image that consumers associate with Aflac anyway.

Resolution - Settlement Likely

While Jellyvision filed the complaint in court, it has yet to actually serve the complaint on Aflac.  This is often an indicator in civil litigation between companies that the complaining party is still seeking some type of out of court settlement, and has merely filed to the complaint to make a point, and increase its leverage in negotiations.  Publicly, thus far, Jellyvision in-house counsel has stated that the parties are seeking an amicable solution to their dispute.

Jellyvision may settle the suit if Aflac licenses trademark rights from Jellyvision.  We estimate, based on the value of the "You Don't Know Jack" game franchise and factors at play in the current case, that Jellyvision could reasonably seek anywhere between $2 to $4 million in value for grant of a trademark license to Aflac.

We called Aflac to inquire about the case and these issues and they responded that they would provide no comment.