IP Law Daily, TRADEMARK—D. Ariz.: Several claims for infringement of ‘GEEKEY’ trademark move forward, (Jun 3, 2026)

By Carolin Dennis, B.Sc., LL.B., LL.M.

Carve adequately alleged likelihood of confusion between the Geekey and “Keyzmo” products.

The U.S. District Court for the District of Arizona granted in part and denied in part a motion to dismiss claims against SlingShop LLC under the Lanham Act and related state-law claims for unauthorized use of the "GEEKEY" word mark and related graphic trademarks. The court allowed Carve Design LLC’s trademark infringement; trademark counterfeiting; unfair competition; and state-law claims to proceed. However, the court dismissed the trade dress infringement claim for insufficient nonfunctionality pleading (Carve Design LLC v. Slingshop LLC, No. 2:25-cv-03521-DWL (D. Ariz. May 29, 2026)).

Background. Carve Design LLC (Carve) is the creator and owner of the Geekey® multi-tool, a pocket-sized, key-shaped multi-function hand tool that integrates numerous practical tools into a single device that can be conveniently caried on a key chain. Carve holds U.S. Trademark Registration Nos. 7,097,395 (’395 Trademark) and 7,238,893 (’893 Trademark) related to its key-shaped multifunctional tool “Geekey.” Carve alleged that SlingShop LLC (SlingShop) knowingly and intentionally copied its registered trademarks, trade dress, product photographs, packaging call-outs (feature descriptions) and advertising by manufacturing and selling a “Keyzmo” product that creates a likelihood of confusion among consumers as to the origin of the goods, and has caused actual confusion in the marketplace. On February 11, 2024, Carve placed a phone call to SlingShop, notifying it of Carve’s intellectual property rights and demanding that SlingShop cease its infringing activities.” Nevertheless, SlingShop continued to market and sell the infringing “Keyzmo” product. Carve then filed the complaint asserting five causes of action: (1) federal trademark infringement; (2) federal trade dress infringement and unfair competition; (3) federal trademark counterfeiting; (4) common law trademark and trade dress infringement; and (5) common law unfair competition. SlingShop filed a motion to dismiss.

Federal trademark infringement. Carve asserted infringement of the ’395 Trademark and the ’893 Trademark. A claim for trademark infringement requires only two elements: (1) ownership of a trademark, and (2) that the plaintiff show a likelihood of confusion through the balancing of eight factors. The court noted that it is undisputed that Carve holds federally registered marks for the ’395 Trademark and the ’893 Trademark. Because the complaint alleged that SlingShop’s product infringes at least some valid protectable portions of the ’395 Trademark, Carve has done enough at this stage of the case to plausibly allege the first element of trademark infringement under the Lanham Act.

Turning to likelihood of confusion, the court noted that neither party’s briefing expressly addresses the eight-factor Sleekcraft test used in the Ninth Circuit to analyze the likelihood of confusion question in all trademark infringement cases. Nevertheless, the court noted that it has found no authority holding that a plaintiff bringing a trademark or trade dress claim must explicitly plead facts going to each of the Sleekcraft factors. To the contrary, a plaintiff is not required to prove the likelihood of confusion at the pleading stage. However, given the complaint’s allegations of actual confusion by customers between Carve’s Geekey product and SlingShop’s Keyzmo product, in addition to the highly factual nature of the likelihood-of-confusion analysis, the court determined Carve’s has done enough at this stage of the case to allege a likelihood of confusion. Accordingly, SlingShop’s motion to dismiss the trademark infringement claim was denied.

Federal trade dress infringement and unfair competition. In addition to Carve’s registered marks, the complaint alleged that the distinctive appearance and overall design of the Geekey® multi-tool (Geekey Trade Dress) is unique, instantly recognizable, and serves to identify Carve as the source of the product. To succeed on a trade dress infringement claim the plaintiff must prove: (1) that its claimed dress is nonfunctional; (2) that its claimed dress serves a source-identifying role either because it is inherently distinctive or has acquired secondary meaning; and (3) that the defendant’s product or service creates a likelihood of consumer confusion.

The court noted that the complaint asserts that the Geekey Trade Dress is nonfunctional but the plaintiff must plead with at least some detail what the purported design is and how it is nonfunctional. Here, Carve attempted to avoid dismissal by arguing that functionality is a fact-intensive inquiry inappropriate for resolution at the motion to dismiss stage. The court noted that functionality is a question of fact that makes dismissal at the pleading stage inappropriate. Nonetheless, even at the motion to dismiss stage, a plaintiff must specifically allege non-functionality.

To establish a claim for false designation of origin under § 1125(a)(1)(A), a plaintiff must show that the defendant (1) used in commerce (2) any word, false designation of origin, false or misleading description, or representation of fact, which (3) is likely to cause confusion or mistake, or to deceive, as to sponsorship, affiliation, or the origin of the goods or services in question.” The court noted that passing off occurs when an enterprise uses a photograph of the competitor’s product, to impliedly represent that the product it is selling was produced by the competitor. Carve alleged that SlingShop posted an advertisement with a link on ESPN.com encouraging internet users to purchase the “Keyzmo” product, but the image shown is actually one of Carve’s product. The court concluded that it was a textbook allegation of passing off, actionable as false designation of origin.

Accordingly, SlingShop’s motion to dismiss the trade dress infringement and unfair competition claim was granted to the extent it was premised on a trade dress infringement theory.

Federal trademark counterfeiting. To succeed on a trademark counterfeiting claim, a plaintiff must establish that: (1) the defendant intentionally used a counterfeit mark in commerce; (2) knowing the mark was counterfeit; (3) in connection with the sale, offer for sale, or distribution of goods or services; and (4) its use was likely to confuse or deceive. As the parties acknowledged, a trademark counterfeiting claim requires proof of substantially the same elements as a trademark infringement claim. Here, Carve successfully stated a claim for trademark infringement. Most of SlingShop’s arguments as to why the complaint failed to state a claim for counterfeiting were reiterations of arguments already rejected. SlingShop also argued that it would be absurd to hold that a “key-shaped tool is a counterfeit.” However, SlingShop failed to cite any case law holding that a key-shaped tool cannot serve as a valid basis for a counterfeiting claim under 15 U.S.C. § 1114. The court noted that the Lanham Act merely requires counterfeit of a registered mark, and it does not prevent Carve from bringing a counterfeiting claim based on the registered and non-disclaimed shape of the Geekey product in the ’395 Trademark and the ’893 Trademark. Accordingly, SlingShop’s motion to dismiss the claim for trademark counterfeiting was denied.

State-law claims. Both parties argued that Carve’s state-law claims for trademark infringement and unfair competition are governed by the same pleading standards as Carve’s claims for federal trademark infringement and unfair competition, and that claims of trade dress infringement under the Lanham Act or common law unfair competition require the court to apply the same analysis. The Court agreed and denied SlingShop’s motion to dismiss the state-law claims for trademark and trade dress infringement and unfair competition.

The Case is No. 2:25-cv-03521-DWL.

Judge: Lanza, D.

Attorneys: Danielle Nichole Byford (Byford Law Firm PLLC) for Carve Design LLC. Brian Nelson Platt (Workman Nydegger) for SlingShop LLC.

Companies: Carve Design LLC; SlingShop LLC

Cases: Trademark ArizonaNews