Nucleus Research Incorporated v. 3Sixty Insights Incorporated (D. Mass. 22-cv-11339).

Nucleus had accused 3Sixty of common law trademark infringement and unfair competition for publishing reports under the name “Anatomy of a Decision.”  Judge Saris had already denied Nucleus’ request for a preliminary injunction, finding the mark was likely descriptive.

Judge Saris has now granted summary judgment in favor of 3Sixty, finding that no reasonable juror could find the mark to have attained secondary meaning as required to prove infringement of an unregistered mark.  She noted that Nucleus, who bore the burden of proving secondary meaning, had introduced no direct evidence, such as customer surveys or testimony, to evidence secondary meaning, and instead offered a single instance in which a customer “expressed concerns” about 3Sixty’s use of the title after it learned about the lawsuit filed by Nucleus.  This single instance was insufficient to demonstrate secondary meaning.

Judge Saris then looked to the indirect evidence provided by Nucleus.  She discounted the “long period of use” by Nucleus of the mark, noting that the same phrase had been used by others in the industry on numerous occasions, including prior to Nucleus’ adoption of the mark.  The non-exclusivity of Nucleus’ usage renders Nucleus’ period of use irrelevant.  Nucleus conceded that it spends no money advertising the mark itself, which weighs against secondary meaning.  Finally, Nucleus’ use of the mark, while extending back to 2011, was inconsistent, with long stretches of non-use, further weighing against a finding of secondary meaning.  Accordingly, Judge Saris granted summary judgment on the Lanham Act unfair competition and common law trademark claims, as well as on the 93A claim, which was based on the same accusations of trademark infringement.