Visier, Inc. v. Google LLC

Background

Visier alleged that it owns trademark rights in “VISIER,” which it uses for a cloud-based people-analytics software platform. Visier alleged that Google used “VIZIER” for an artificial-intelligence optimizer that tunes machine-learning models. According to Visier, the products and marks were sufficiently related and similar that consumers could believe Google’s product was connected with, approved by, or incorporated into Visier’s software. Visier also alleged possible “reverse confusion,” meaning consumers might think Visier’s product was connected to or infringing Google’s technology.

Visier asserted five causes of action: federal trademark infringement, false designation of origin under the federal trademark statute, common-law trademark infringement, unfair competition under California’s Unfair Competition Law, and common-law unfair competition.

Motion to Strike

Google asked the court to strike allegations stating that its use of “VIZIER” could reduce the distinctiveness of Visier’s marks and harm Visier’s reputation. Google argued that those statements improperly suggested a trademark-dilution claim, even though Visier had pleaded trademark-infringement claims rather than a dilution claim.

The court denied the motion to strike. Visier acknowledged that it was not asserting a dilution claim, but argued that the allegations described harm caused by Google’s allegedly confusingly similar use of the mark. The court concluded that it was not clear the allegations had no possible bearing on the litigation. It also found Google’s generalized concerns about added cost, complication, and jury confusion insufficient to establish prejudice at this stage.

Motion to Dismiss

Google moved under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim, to dismiss Visier’s California Unfair Competition Law claim insofar as it relied on the statute’s “unfair” practices prong.

The court explained that the statute separately prohibits unlawful, unfair, and fraudulent business practices. Because Visier alleged that Google’s trademark use was unlawful, Google did not dispute that Visier stated a claim under the unlawful-practices prong. But because Visier and Google were alleged to be direct competitors for purposes of the court’s analysis, the “unfair” prong required allegations of conduct threatening an antitrust violation, violating antitrust policy, or significantly harming competition. Visier’s complaint did not allege those facts, and Visier stated that it was not asserting an anticompetitive business-competitor claim.

The court therefore granted Google’s motion to dismiss Visier’s California Unfair Competition Law claim to the extent it was based on the unfair-practices prong. The order did not state that this dismissal was with or without prejudice and did not separately address leave to amend. The court scheduled a case-management conference.