Toymaker Can’t Nix Suit Over New ‘IPad for Kids’

SAN JOSE, Calif. (CN) - Mattel and Fisher-Price will face off at trial against a company that has trademarked an educational children's game with the same name as the toy giant's upcoming product, touted as an iPad for kids.

IXL Learning fka Quia Corp. has created online study materials since 1998 and launched an online, "game-like" study program for kids called IXL in 2007. The company obtained the IXL trademark in 2009 and estimates that a million children have access to the product, advertised as "the Web's #1 math practice site," through family or school subscriptions.

In 2010, however, Mattel's Fisher-Price subsidiary began aggressively marketing the iXL Learning System, which the tech industry has heralded as "the iPad for kids." Mattel says the app-powered tablet, which offers art activities, games, a music player, a photo album and two other applications, is "the ultimate and coolest handheld learning system designed for kids 3-7."

Quia filed suit in 2010, around the same time it changed its name to IXL, after Fisher-Price attempted to trademark "iXL." The complaint states that Quia lost sales on its math program because of Mattel's similarly named product and because Mattel and Fisher-Price allegedly reserved "tags" to improve search-engine results on Google and Bing. The

U.S. District Judge Jeremy Fogel found Quia could not prove it had lost profits from its competitors' marketing strategies, noting the only evidence Quia offered was expert testimony that Internet search results for iXL forced users to click on Fisher-Price-related links instead of links related to Quia.

"The claim that every click-through to a site related to defendants' product results in measurable or otherwise compensable harm to plaintiff is based entirely on conjecture," Fogel wrote on July 14.

"Even if web traffic has been diverted from its site, plaintiff has not shown that any underlying or resulting confusion has damaged its goodwill," the judge added.

But Quia may still be able to prove that Fisher-Price had committed willful infringement since the Mattel subsidiary learned about Quia's registered "IXL" logo during a trademark search, according to the 17-page decision.

While Fogel also accepted Quia's claim that its product suffered from reverse confusion, he found no evidence "that any customers purchased the Fisher-Price product based on a mistaken belief that it was affiliated with IXL Learning's web-based products."

The companies must litigate equitable-relief claims, such as an accounting, at a nonjury trial.

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