To most people, they probably sound like made-up words: bruxer, bruxing, bruxism.
But in the dental industry, bruxing is a common term for teeth grinding or clenching. So Shaun Keating never expected a problem when his Irvine company created a product for making crowns and bridges for people with the condition and called it KDZ Bruxer, with KDZ standing for Keating Dental Zirconia.
Then he got sued.
The plaintiff was an industry giant and his former employer, Newport Beach-based Glidewell Laboratories, which said the name KDZ Bruxer ripped off its trademarked product, BruxZir.
After a year and a half, Keating Dental Arts prevailed, with a federal judge ruling there was no trademark infringement. KDZ Bruxer and BruxZir both live on.
But Keating said the victory has left him with $950,000 in legal fees, which he’s still trying to figure out how to pay.
He’d expected to pay $100,000.
“I knew we would prevail, but I didn’t expect it would go as big as it did,” Keating said. “It could have bankrupted us.”
In March, U.S. District Judge David O. Carter ruled there was “no likelihood of confusion” because bruxing is a common term and Keating’s product has a “substantially different” name.
Glidewell officials said they filed the suit in 2011 because people had confused the two products, partly because BruxZir and Bruxer are pronounced similarly.
Jim Shuck, Glidewell’s sales and marketing vice president, said the firm has never been litigious, but believed it had to protect a mark used by 212 U.S. labs that make BruxZir products.
Keating and his lawyers argued in court filings that Glidewell was trying to use its size to muscle a small company into submission.
Keating, who spent 18 years with Glidewell before starting his own company in 2002, said he believed he had to fight the “David and Goliath” battle on principle. Glidewell has about 3,500 employees and nine locations, while Keating Dental has about 120, all in Irvine, according to the two companies.
Gary Pritchard, Glidewell’s in-house lawyer, said the little-guy-versus-big-guy rhetoric sounded like an effort to win a jury’s sympathy. The case never went to trial.
Glidewell said it had sold tens of millions of dollars worth of BruxZir products and that Keating was trying to capitalize on that success by creating a similar line with a similar name.
Keating lawyers compared that logic to Apple Inc. trying to stop anyone else from using the word “phone” in a product name because of its iPhone trademark. They pointed out that “bruxing” is in many standard dictionaries.
Both sides agreed they’re ready to put the case behind them.
“I just want to get back to making teeth,” Keating said. “It’s what we do.”
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