Last week, Sony revealed the new controller for the upcoming PlayStation 5 console, launching in late 2020. Sony also revealed a rebrand for the controller – the DUALSENSE. The new name marks a change from Sony’s controller naming scheme that dates back to 1997 – the DUALSHOCK. As such, the trademark rights established by Sony over the past 23 years do not extend to the new controller. Sony must build the same kind of name recognition for the DUALSENSE as that enjoyed by the DUALSHOCK. However, other DUALSENSE marks exist in the marketplace. Accordingly, Sony faces trademark challenges with its new DUALSENSE controller.
Under US trademark law, a likelihood of consumer confusion determines trademark registrations and infringement questions. Under the Lanham Act, a product name cannot be confusingly similar to another mark. However, different products can have similar names so long as confusion is unlikely. For example, a consumer is unlikely to be confused between DELTA faucets and DELTA airlines. As such, those companies can coexist in the marketplace without confusion. In such a situation, when many similar marks exist for different products, a crowded field of marks is formed. Crowded fields can make it easier to register a new mark. However, crowded fields also limit the scope of protection provided by the trademark.
Other DUALSENSE registrations pose challenge to Sony’s prospects
In Sony’s case, four other registered trademarks in the United States include both the terms “DUAL” and “SENSE.” The registrations differ in goods from Sony’s controller – mattress toppers, gas detectors, access control systems, and hair care products. However, every new trademark application receives an examination by a trademark examiner. Even the most experienced attorneys cannot guarantee an outcome. As such, while the existing registrations do not appear to conflict, Sony’s trademark may receive a refusal based on a likelihood of confusion. In addition, Sony must start over again building trademark recognition of the rebranded DUALSENSE controllers.
Interestingly, Sony’s reveal article notes that the DUALSENSE is “a registered trademark or trademark of Sony Interactive Entertainment Inc.” Upon a review of the USPTO and WIPO trademark databases, it does not appear that Sony filed any trademark applications for DUALSENSE. Perhaps Sony decided to gauge consumer responses to the name before filing applications. However, Sony’s path forward on the DUALSENSE trademark may be challenging.