Family-owned Simply Wireless Inc. has asked the Western District of Washington court overseeing the trademark dispute between it and T-Mobile US Inc. to toss the case for want of merit. Tuesday’s filing describes the companies’ prior business engagements and lawsuits, culminating in the instant one, which the defendant claims is a “litigation tactic intended to exert pressure on Simply Wireless.”
As previously reported, T-Mobile filed the trademark infringement suit in April, arguing that Simply Wireless continues to represent to the public that the parties are engaged in a business partnership, though they are reportedly not. Primarily, the complaint asserts, the defendant uses one of T-Mobile’s trademarks on its website, www.simplywireless.com, and that such presence constitutes trademark infringement under the Lanham Act and analogue state law.
In the dismissal filing, Simply Wireless alleges that T-Mobile’s claims are time barred because it knew about the alleged trademark infringement for years, and should have brought the case when it was put on notice in 2015. T-Mobile knew or should have known about its claims, Simply Wireless argues, pointing to case law standing for the proposition that a plaintiff cannot bring infringement claims if he fails to exercise diligence, in contravention of the discovery rule and also, the doctrine of laches.
Likewise, the plaintiff’s Washington state law claim for an “unfair or deceptive act or practice,” is barred by that statute’s four year limitations period, Simply Wireless says. As proof of T-Mobile’s allegedly inexcusable delinquency, the filing asks the court to take judicial notice of several archival copies of the Simply Wireless website depicting the mark at issue at previous points in time.
In addition to being untimely, T-Mobile has failed to state a claim under the Lanham Act because the wireless provider “failed to allege any goods or services sold by Simply Wireless about which consumers could be confused.” In contrast to T-Mobile’s assertion, Simply Wireless claims that it is not only entitled to sell T-Mobile’s products and services using its logo, but that “it would be misleading if Simply Wireless sold T-Mobile products without using the T-Mobile logo to designate their source of origin.”
T-Mobile is represented by Polsinelli P.C. and Simply Wireless by Williams, Kastner & Gibbs PLLC and Cameron/McEvoy PLLC.
