Nielsen Consumer LLC v. LiveRamp Holdings, Inc.

Background

Nielsen Consumer LLC alleged that LiveRamp Holdings, Inc. and LiveRamp, Inc., collectively referred to as LiveRamp, infringed two Nielsen trademarks connected to its “Label Insight” platform. One was a common-law mark for the term “LABEL INSIGHT.” The other was a federally registered mark containing that term and a graphic design.

Nielsen alleged that LiveRamp provides access to data from third-party companies, including Circana, LLC, which competes with Nielsen in providing retail and product data and analytics. According to the complaint, LiveRamp displayed the phrase “IRI Attribute Audiences Powered By Label Insight” on its platform. Nielsen alleged that it did not authorize LiveRamp to use either mark or to use Circana to provide Nielsen’s data.

Nielsen asserted four claims: trademark infringement under the federal Lanham Act, unfair competition under the Lanham Act, common-law trademark infringement and unfair competition, and violation of the California Unfair Competition Law. LiveRamp moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint plausibly states a claim for relief.

Analysis

For purposes of the motion, the court accepted the complaint’s factual allegations as true and drew reasonable inferences in Nielsen’s favor. The court concluded that all four claims survived the motion.

Distinctiveness of the common-law mark. A trademark must be distinctive to receive protection. LiveRamp argued that “LABEL INSIGHT” was generic or merely descriptive without the required secondary meaning, which is evidence that consumers have come to associate a descriptive term with a particular source. Nielsen argued that the mark was suggestive and therefore inherently distinctive.

The court found that distinctiveness is generally a factual question that is not well suited to resolution on a motion to dismiss. Applying the “imagination test” and the “competitors’ needs test,” the court concluded that Nielsen plausibly alleged that “LABEL INSIGHT” was suggestive. The term did not automatically identify a platform offering data and analysis about consumer goods, and competitors could describe similar services without using that term. The court therefore declined to resolve LiveRamp’s remaining arguments that the mark was generic or descriptive without secondary meaning.

Likelihood of confusion involving the registered mark. Trademark infringement and related unfair-competition claims require a valid, protectable mark and a likelihood that consumers will be confused. The court considered LiveRamp’s argument that the registered mark was sufficiently different from LiveRamp’s phrase because the registered mark included a graphic and LiveRamp’s phrase did not.

At the pleading stage, the court found a plausible likelihood of confusion. The registered mark included the exact term “LABEL INSIGHT,” LiveRamp used that same term, and both uses appeared in the market for consumer-data analytics. The court would not decide at this stage whether the graphic portion dominated the registered mark or whether consumers would focus on that graphic rather than the words. It also rejected the argument that including “LABEL INSIGHT” within a longer phrase necessarily prevented confusion. The court emphasized that consumer confusion is usually a fact-intensive question.

Nominative fair use. Nominative fair use is a defense based on using another party’s mark to identify that party’s product or service. LiveRamp argued that its use of “IRI Attribute Audiences Powered By Label Insight” qualified for this defense. The court explained that the defense generally asks whether the product can be identified without the mark, whether the defendant used only as much of the mark as reasonably necessary, and whether the use suggested sponsorship or endorsement.

The court found that this analysis ordinarily involves factual and legal questions and was premature on a motion to dismiss. It could not conclude as a matter of law that users would be unlikely to believe Nielsen endorsed LiveRamp’s service, given Nielsen’s ownership of two marks containing “LABEL INSIGHT,” the companies’ activity in the consumer-data market, and LiveRamp’s use of the phrase on its data platform. The court therefore allowed the claims to proceed.

Disposition

The court DENIED LiveRamp’s motion to dismiss. Because the Lanham Act claims survived, the court also declined to dismiss the remaining claims, which LiveRamp argued depended on the Lanham Act claims.

The court DENIED AS MOOT LiveRamp’s motion to stay discovery pending resolution of the motion to dismiss and Nielsen’s request to file a sur-reply. The court also DENIED AS MOOT LiveRamp’s requests for judicial notice of materials outside the complaint. The order directed the parties to appear for an initial case-management conference on April 8, 2025, and to file a joint case-management statement by April 1, 2025. The order did not determine whether infringement or consumer confusion ultimately occurred; it determined only that Nielsen’s allegations were sufficient to proceed beyond the pleading stage.