Wildbird Llc. v. Wildride B. V. was an action in the Southern District of New York concerning two sets of trademarks (word marks and logos) that start with the same word: Wild. Both companies make wearable carriers for children; the plaintiff makes cinchable, cloth baby carriers while the defendant makes carriers for toddlers that have a fixed frame.
Wildbird had initially sought a preliminary injunction against Wildride for trademark infringement and “false association, false designation of origin, and unfair competition” under the Lanham Act. In the lead-up to a hearing on that motion, Plaintiff brought a motion for a temporary restraining order seeking to enjoin the use of defendant’s WILDRIDE trademark in Target stores or on any websites in the United States. Plaintiff said there was an immediate need for the restraining order because Wildride intended to sell its products in Target stores within two weeks.
Similar to the First Circuit in a case we recently wrote about, courts in the Second Circuit use an eight-factor test to determine likelihood of confusion. Some of the factors that were most salient in this case included the degree of similarity between the marks; the strength of the marks; the presence of actual confusion; and whether it was done in good or bad faith.
Plaintiff asserted that the marks WILDBIRD and WILDRIDE were confusingly similar because they contained the same first word. On the one hand, the court agreed that two other district court cases from the Second Circuit held that the first-word similarity would be enough to find confusing similarity. In this instance, however, the court said that the marks were not similar because the fonts, logos and slogans used in connection with the marks were substantially different. Plaintiff’s logo included a bird and its advertising included “keep your little bird close” and “welcome to the flock,” while defendant’s logo included a cheetah and emphasized “enjoy the ride!” That factor allegedly weighed in favor of the defendant.
As for the strength of the mark, the court noted over 100 examples of children’s products that contained the word “wild.” That, the court said, meant both parties’ trademarks were suggestive and therefore weren’t strong marks, making that factor a draw.
The court went on to find that the plaintiff did not offer a convincing survey that demonstrated actual confusion. Although the plaintiff presented a survey showing that 28% of respondents confused the two products, the court found that was insufficient. Plaintiff also offered interactions at trade shows between unnamed people as actual confusion, but the court called that hearsay. This factor, the court said, weighed in favor of the defendant.
As for whether the defendant acted in bad faith, plaintiff’s only evidence was that it had constructive knowledge of plaintiff’s trademark by virtue of the trademark registration in the USPTO. The court found fault with that assertion, citing the failure of the plaintiff to file its renewal — which meant it was not actually a registered trademark at the time of defendant’s commencing use of its mark. Plaintiff had only refiled and obtained registration again in 2025. This factor also weighed in favor of the defendant.
After considering all the factors, the court found that there was no likelihood of confusion, and therefore no likelihood of success. It denied the temporary restraining order seeking to prevent defendant from releasing its carriers in the United States.
The thing that stood out for me was the judge’s simply denying that WILDRIDE and WILDBIRD looked and sounded alike. Many court and TTAB decisions have held that using the same first word in a multi-word mark at least contributes to a likelihood of confusion. The court seemed persuaded by other evidence, but two of the trademark registrations consisted of the words alone — so consideration of the logos and the slogans seem extraneous to me. It also struck me as odd that the court considered the absence of a more conclusive survey to weigh against the plaintiff when in other cases it might have been considered a neutral factor. The absence of actual confusion is normally the least important factor; it just weighs in favor of the plaintiff if there’s evidence of actual confusion. The absence of that evidence doesn’t normally weigh against the plaintiff. To be sure, the plaintiff’s allowing its trademark registration to lapse didn’t help the situation.
That said (and pending any appeal), it just shows you that “confusing similarity” can be a subjective exploration with inexplicable, unpredictable results.
