American Innovative Products, Inc. v. Lowe’s Companies, Inc. et al. (D. Mass. 22-cv-10419).

American Innovative Products (“AIP”) accuses Lowe’s, EZ-FLO International and Reliance Worldwide Corporation of infringing their registered trademark in “BURST FREE” for washing machine hoses.  AIP says that Samar Company, Inc. sold washing machine hoses under the mark to Lowe’s for more than twenty years, ending in 2016 when Samar closed.  The complaint does not indicate how AIP came to have rights in the mark, but they were an assignee of a prior Samar registration on the mark that was cancelled in July 2020 for failure to file an acceptable Section 8 Declaration of continued use in commerce.  AIP filed a new application for the mark, which was registered in February 2021. 

AIP says that Lowe’s sells products that it obtains from EZ-FLO (which is owned by Reliance Worldwide) that have the BURST FREE mark on the packaging (although I note that, rather than appearing to be used as a trademark, the packaging states at the upper corner of the box and in small font that the accused hoses come with a “7 Year Burst Free Warranty,” which may be an acceptable use under 15 USC 1115(b)(4), which provides that use of a registered mark is not infringing where it is not used as a trademark and is descriptive of  and used in good faith to describe the accused goods.

AIP notes that Lowe’s rack display tags and receipts each identify the product as “Burst Free HE WM Hose,” which would suggest that Lowe’s might be infringing even if EZ-FLO is not.  In addition to trademark infringement, AIP asserts false designation of origin.