A small graphic design firm that uses "Bing!" for its branding is suing Microsoft for using the same word for the name of its search engine.
Missouri-based Bing! Information Design filed a case in St. Louis circuit court on Tuesday, arguing the software giant's aggressive advertising of Bing search has "gutted" its efforts to distinguish its own business and is likely to cause confusion.
The design company - which creates illustrations, animations, and technical diagrams - claims it has been using "Bing!" for its branding since early 2000. However, it waited until May 26, 2009 to attempt registering the trademark with the US Patent and Trademark Office.
Its initial trademark registration was rejected by the USPTO in August because Microsoft had applied for a trademark on "Bing" (sans exclamation point) two months earlier. According to USPTO records, the case reviewer judged that the extra punctuation was an insignificant difference to Microsoft's trademark application and that it could invalidate the design company's claim to "Bing!"
The lawsuit alleges that Microsoft was aware of Bing! Interactive Design's trademark application and intentionally began a heavy marketing campaign for "Bing" to cause confusion and dilution of the name. It goes on to claim the software giant's conduct was "outrageous due to its evil motive or reckless interference" with the rights of Bing! Interactive.
"My client selected this unique mark to distinguish itself in the marketplace and invested substantial time and effort promoting its business using Bing!" said Anthony Simon, the attorney representing the design firm, in a statement. "Microsoft's use of the identical mark and its aggressive advertising have gutted all of my client's efforts to distinguish its business and created confusion that must be remedied."
The lawsuit asks that Microsoft be barred from using the word "Bing" — or any similar mark — in branding and that it destroy any existing promotional material that contains the offending word. It also asks Microsoft pay damages and fund "corrective advertising" to reverse any confusion over using the word "Bing."
Microsoft spokesman Kevin Kutz said in an emailed statement that the company has not been served with the complaint, but that it is aware of the lawsuit based on media reports.
"We believe this suit to be without merit and we do not believe there is any confusion in the marketplace with regard to the complainants offerings and Microsoft's Bing," he wrote. "We respect trademarks and other people's intellectual property, and look forward to the next steps in the judicial process."
Earlier this week, the daughter of Do Androids Dream of Electric Sheep author, Philip K. Dick was reportedly mulling legal action against Google for planning to sell a mobile phone under the name "Nexus One." Dick's famous novel involves a bounty hunter charged with tracking down a group of escaped androids with the name Nexus-6. ®