United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
2003, Servpro Industries Inc. has used its registered
trademark “Like it Never Even Happened” in
advertising its restoration and cleaning services. For
approximately three months in early 2017, Zerorez of Phoenix
LLC used the phrase “Like it Never Happened” in
its advertisements for carpet cleaning services. Servpro
believes those advertisements infringed its trademark as a
matter of law. Zerorez believes consideration of the larger
context shows it did not infringe the trademark as a matter
of law. Zerorez is correct.
purposes of resolving the motion for summary judgment filed
by Zerorez, the Court describes the record in the light most
favorable to Servpro. Fortunately, most of the relevant facts
Servpro's Business and Advertising
“is one of the world's largest providers of cleanup
and restoration products and services.” (Doc. 1 at 4).
Servpro has more than 1, 700 franchisees operating in the
United States with eighteen franchisees in the Phoenix area.
Servpro describes the services its franchisees offer as
"carpet, furniture and drapery cleaning services;
restoration of building structures damaged by fire, water and
other catastrophes both indoors and outdoors; restoration of
furniture damaged by fire, water and other catastrophes; and
mold remediation services." (Doc. 1 at 5).
marketing its services, Servpro uses a "House Logo"
as "the primary identifier for the company." (Doc.
79-1 at 65). Servpro's House Logo is:
addition to its House Logo, Servpro also uses a phrase it
describes as its "Brand Descriptor." That phrase is
usually portrayed as:
advertisements, the Brand Descriptor is usually
"positioned below the SERVPRO House Logo." (Doc.
79-1 at 70).
Servpro uses what it calls a "Branding Statement,"
which is actually the trademark at issue in this litigation.
The trademark is "Like it never even happened."
Servpro requires franchisees include the trademark in
"[e]very ad and marketing piece . . . except small
advertisements where space does not permit." (Doc. 79-1
at 69). Typically, the trademark is placed at the bottom of
an advertisement. (Doc. 79-1 at 69). Servpro and its
franchisees often include the House Logo, Brand Descriptor,
and Branding Statement in advertisements. One such example
Zerorez's Business and Advertising
Franchising, Inc. "is a carpet, upholstery and
hard-surface (e.g. stone and granite] cleaning company."
(Doc. 98 at 3). There are numerous Zerorez franchisees
throughout the country, one of which is Zerorez of Phoenix
LLC ("Zerorez"). Zerorez Franchising differentiates
itself from other carpet cleaning services by touting its
"patented cleaning system with Empowered Water."
Zerorez Franchising describes "Empowered Water" as
an alternative to traditional water and soap mixtures.
Zerorez performs cleaning services but does not perform
"any restoration services" similar to those
provided by Servpro.
Franchising owns a number of trademarks, including
"Zerorez" and "Empowered Water." The
"primary logo" used by Zerorez Franchising and its
franchisees is a trademark consisting of three rows of three
the Zerorez advertisements in the record include one or more
of the trademarks.
Zerorez's Alleged Infringement
December 7, 2016, a few Zerorez employees attended a
marketing meeting. (Doc. 98 at 36). At that meeting, a
Zerorez employee suggested "the theme and tagline
'Like it Never Happened.'" The meeting
participants agreed to use the phrase in future
advertisements. On January 1, 2017, Zerorez updated its
website to include the phrase on its ...