2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 1 of 31 Pg ID 178
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`THE HERSHEY COMPANY and
`HERSHEY CHOCOLATE & CONFECTIONARY
`CORPORATION,
`
`Plaintiff(s),
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`CASE NUMBER: 08-14463
`HONORABLE VICTORIA A. ROBERTS
`
`v.
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`ART VAN FURNITURE, INC.,
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`Defendant(s).
` /
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`ORDER GRANTING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING
`ORDER AND PRELIMINARY INJUNCTION, IN PART, AND DENYING PLAINTIFF’S
`MOTION IN PART
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`I.
`
`INTRODUCTION
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`Plaintiff filed suit against Defendant, alleging trademark infringement under 15
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`U.S.C. § 1114(1), false association, sponsorship and approval pursuant to15 U.S.C. §
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`1125(a)(1)(A), trademark dilution by blurring (Plaintiff’s brief suggests a claim based on
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`dilution by tarnishment, but counsel for Plaintiff corrected this during oral argument)
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`according to 15 U.S.C. § 1125(c), unfair competition under 15 U.S.C. § 1125(a), and
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`common law conversion. Plaintiff also filed an Emergency Motion for Temporary
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`Restraining Order and Preliminary Injunction. The Court heard oral arguments on
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`Plaintiff’s Motion on October 23, 2008.
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`For the reasons stated, the Court GRANTS Plaintiff’s request, but only with
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`respect to its dilution by blurring claim.
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 2 of 31 Pg ID 179
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`II.
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`BACKGROUND
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`Plaintiff is a well-known maker of chocolate and confectionery goods, whose
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`products are distributed and sold the world over. Defendant is Michigan’s largest
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`furniture retailer, operating 30 stores (all in-state), a website where customers may buy
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`products online, and a fleet of about two dozen trucks for customer deliveries. The
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`issue before the Court concerns Defendant’s decoration of its delivery trucks.
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`On October 10, 2008, Defendant launched an advertising campaign. It posted
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`ten truck decorations on its website and invited visitors to vote for their favorite design
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`with a chance to win a $50 gas card. Defendant also announced that the winning
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`design would be emblazoned on every one of its delivery trucks. At oral argument,
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`however, Defendant stated it plans to delay redecorating its trucks pending the result of
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`this case. The voting period ends October 31, 2008.
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`The first design on the contest page of Defendant’s website is an image of a
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`brown sofa emerging from a red and/or burgundy wrapper reminiscent of a candy bar.
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`This “couch bar” is designed to bring to mind a candy or a chocolate bar, with its
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`packaging torn open and mouth-watering contents exposed. Emblazoned across the
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`wrapper are the words “ART VAN,” spelled in white, block lettering, and on the bottom
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`left of the wrapper, in smaller type, “Since 1959.” On the right side of the image, where
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`the sofa juts from the “candy bar,” the torn wrapper has the appearance of crackled and
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`ripped tinfoil. On the left, the same silver-colored foil is visible, protruding beneath the
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`red and white wrapper.
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`Plaintiff contends that Defendant’s design truck is an unauthorized and deliberate
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`infringement of its trademarks and trade dress. Plaintiff claims that its trademark and
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 3 of 31 Pg ID 180
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`trade dress packaging include:
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`1. a rectangular design;
`2. silver, stylized lettering;
`3. a brownish-maroon colored wrapper;
`4. the name “Hershey’s;” and
`5. silver foil protruding from under the wrapper along the edges of the bar.
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`Plaintiff claims that Defendant’s “couch bar” design is unauthorized and infringes upon
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`its registered and non-registered trademarks and trade dress, and that Defendant is
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`trading on Plaintiff’s goodwill and reputation to advertise, distribute and sell its products.
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`Plaintiff charges that the “couch bar”’s resemblance to Hershey’s famous chocolate
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`candy bar is intentional, and that Defendant initially sought to purchase a license from
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`Plaintiff to use this design, which request Plaintiff denied. Plaintiff further alleges that
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`Defendant operates at least one truck with the “couch bar” design; Defendant denied
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`this during oral argument. Defendant also disputes the suggestion that it requested a
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`license to use Plaintiff’s trade dress; rather, Defendant claims that it only offered to
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`purchase the license after Plaintiff expressed concern about the truck design, as a way
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`to resolve the controversy. Finally, Defendant’s spokeswoman Chris Morrisroe is
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`quoted as saying, in response to newspaper inquiries about this lawsuit: “It [the “couch
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`bar”] is getting the number one vote.”
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`Plaintiff requests that the Court enter a temporary restraining order enjoining
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`Defendant from: (1) infringing on any of Plaintiff’s trademarks or trade dresses; (2)
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`manufacturing, advertising or promoting any products or services using Plaintiff’s
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`trademarks or trade dress; and (3) engaging in a host of other potentially infringing acts.
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 4 of 31 Pg ID 181
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`III.
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`ANALYSIS
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`The Court must determine whether Plaintiff meets its burden for issuance of a
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`Temporary Restraining Order. When deciding such motions, a district court must
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`consider: (1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff
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`could suffer irreparable harm without the relief; (3) whether granting the order will cause
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`substantial harm to others; and (4) whether granting the order will serve the public
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`interest. Summit County Democratic Central & Executive Committee v. Blackwell, 388
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`F.3d 547, 550-51 (6th Cir. 2004); see also Connection Distributing Co. v. Reno, 154 F.3d
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`281, 288 (6th Cir. 1998), cert. denied, 526 U.S. 1087 (1999). No single factor is
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`dispositive; rather, the court must balance them and determine whether they weigh in
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`favor of an injunction. Six Clinics Holding Corp., II v. Cafcomp Systems, Inc., 119 F.3d
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`393, 400 (6th Cir. 1997).
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`A.
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`Likelihood of Success on Merits - Trademark Infringement Claim
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`Plaintiff argues that Defendant infringed its trademarks and trade dress, and that
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`these violations will only get worse if Defendant is allowed to proceed with its contest
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`and truck decorating plan.
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`“A trademark is defined in 15 U.S.C. § 1127 as including ‘any word, name,
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`symbol, or device or any combination thereof" used by any person ‘to identify and
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`distinguish his or her goods, including a unique product, from those manufactured or
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`sold by others and to indicate the source of the goods, even if that source is unknown.’
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`In order to be registered, a mark must be capable of distinguishing the applicant's goods
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`from those of others.” Two Pesos v. Taco Cabana, 505 U.S. 763, 769 (1992). By
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`4
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 5 of 31 Pg ID 182
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`comparison, “[t]he ‘trade dress’ of a product is essentially its total image and overall
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`appearance . . . and may include features such as size, shape, color or color
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`combinations, texture, graphics, or even particular sales techniques.” Id. at 765 n.1
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`(internal quotations omitted). As the Second Circuit explains,
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`[t]rade dresses often utilize commonly used lettering styles, geometric
`shapes, or colors, or incorporate descriptive elements, such as an
`illustration of the sun on a bottle of suntan lotion. While each of these
`elements, individually would not be inherently distinctive, it is the
`combination of elements and the total impression that the dress gives to
`the observer that should be the focus of a court’s analysis of
`distinctiveness.
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`Paddington Corp. v. Attiki Importers & Distributors Inc., 996 F.2d 577, 584 (2nd Cir.
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`1993).
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`Because these claims involve both registered and unregistered trademarks, and
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`because these marks combine to form Plaintiff’s overall trade dress, the Court analyzes
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`them together, rather than as distinct elements.
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`The Lanham Act, as the statute regrouping federal trademark laws is known,
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`states: “Any person who shall, without the consent of the registrant--
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`(a) use in commerce any reproduction, counterfeit, copy, or colorable
`imitation of a registered mark in connection with the sale, offering for
`sale, distribution, or advertising of any goods or services on or in
`connection with which such use is likely to cause confusion, or to
`cause mistake, or to deceive; or
`(b) reproduce, counterfeit, copy, or colorably imitate a registered mark
`and apply such reproduction, counterfeit, copy, or colorable imitation
`to labels, signs, prints, packages, wrappers, receptacles or
`advertisements intended to be used in commerce upon or in
`connection with the sale, offering for sale, distribution, or advertising
`of goods or services on or in connection with which such use is likely
`to cause confusion, or to cause mistake, or to deceive,
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`shall be liable in a civil action by the registrant . . .” 15 U.S.C. § 1114(1).
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 6 of 31 Pg ID 183
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`To succeed on a Lanham Act trade dress infringement claim, a plaintiff must
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`prove that “the allegedly misappropriated features of the dress (1) are inherently
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`distinctive or have acquired distinction by virtue of secondary meaning in the
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`marketplace; (2) are not functional; and (3) create a likelihood of confusion as to the
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`source of defendant’s goods.” Mexican Food Specialties v. Festida Foods, Ltd., 953 F.
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`Supp. 846, 849 (E.D. Mich. 1997) (citing Windmill Corp. v. Kelly Foods Corp., Nos.
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`94-5874/94-5890, 95-5137, 1996 U.S. App. LEXIS 3473, at *9 (6th Cir. Jan. 26, 1996)).
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`1.
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`Plaintiff’s Trademarks and Trade Dress are Distinctive
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`The defining characteristic of a trademark, which is also the requirement to apply
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`for registration, is its “distinctiveness,” or ability to distinguish from others the product to
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`which it is affixed. Two Pesos, 505 U.S. at 768. In Abercrombie & Fitch Co. v. Hunting
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`World, Inc., Judge Friendly defined the classic distinctiveness scale, which separates
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`marks into categories – (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, and (5)
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`fanciful – based on their distinctive character. 537 F.2d 4, 9 (2d. Cir. 1976). A mark
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`can be inherently distinctive, like those in categories three, four and five. If it falls in the
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`first two categories, the mark must acquire this trait in the marketplace, by developing a
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`“second meaning.” Two Pesos, 505 U.S. at 769.
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`A mark that is not inherently distinctive acquires this trait when it
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`“develop[s] secondary meaning, which occurs when, ‘in the minds of the public, the
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`primary significance of a [mark] is to identify the source of the product rather than the
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`product itself.’” Wal-Mart Stores, Inc., v. Samara Brothers, Inc., 529 U.S. 205, 211
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`(2000) (quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851,
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`n.11 (1982)). The Sixth Circuit’s secondary meaning analysis evaluates seven factors
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 7 of 31 Pg ID 184
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`to determine whether a trademark or trade dress has acquired distinctiveness:
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`(1) direct consumer testimony; (2) consumer surveys; (3) exclusivity,
`length and manner of use; (4) amount and manner of advertising; (5)
`amount of sales and number of customers; (6) established place in the
`market; and (7) proof of intentional copying.
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`DeGidio v. West Group Corp., 355 F.3d 506, 513 (6th Cir. 2004) (citing Marketing
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`Displays, Inc. v. TrafFix Devices, Inc., 200 F.3d 929, 937 (6th Cir. 1999), rev’d on other
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`grounds, 532 U.S. 23 (2001)). “Secondary meaning is established when a
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`preponderance of the evidence demonstrates ‘that the attitude of the consuming public
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`toward the mark denotes a single thing coming from a single source.’” Id. (quoting
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`Burke-Parsons-Bowlby Corp. v. Appalachian Log Homes, Inc., 871 F.2d 590, 596 (6th
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`Cir. 1989) (other internal quotes omitted)).
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`The Court finds that Plaintiff’s chocolate bar trade dress has acquired a
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`secondary meaning that entitles it to federal trademark protection. Federal law
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`recognizes as prima facie evidence of distinctiveness, the fact that a mark or trade
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`dress has been used in commerce, for a minimum of five years, and in a manner both
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`substantially exclusive and continuous. 15 U.S.C. § 1052(f). At oral argument, counsel
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`for Plaintiff represented that this chocolate bar has had the same trade dress for
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`decades, and that it is distributed and sold around the world. Counsel further submitted
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`that Plaintiff spends millions of dollars annually to advertise and consolidate its brand,
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`and that it is one of the most recognizable and best selling confectionery products in the
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`United States. The Court also takes notice that Plaintiff’s candy bar is often described
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`as an “American Icon” on the same plane as Coca-Cola, for example. See, e.g., Dennis
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`R. Hall & Susan Grove Hall, eds., American Icons: An Encyclopedia of the People,
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 8 of 31 Pg ID 185
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`Places, and Things that Have Shaped Our Culture 336-42 (2006).
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`Because Plaintiff’s trade dress satisfies the requirements of the secondary
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`meaning analysis, the Court need not decide if it is inherently distinctive.
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`2.
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`Plaintiff’s Trade Dress is Not Functional
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`The party seeking to protect a particular trade dress bears the burden of proving
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`the trade dress is not functional. 15 U.S.C. § 1125(a)(3). A trade dress is deemed
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`functional if it is so inherently essential to the product’s use or purpose that, were it to
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`be protected, other manufacturers would be unable to compete effectively in the market
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`for the product. Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280
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`F.3d 619, 642 (6th Cir. 2002). A functional product design may not be protected as a
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`trade dress. TrafFix Devices v. Marketing Displays, 532 U.S. 23, 29 (2001).
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`The discrete characteristics of Plaintiff’s trade dress are not inherently essential
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`to the use or purpose of a chocolate bar. Likewise, a person seeking to conjure the
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`image of a chocolate bar can use an infinity of color, font and design combinations
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`without replicating Plaintiff’s trade dress. Thus, Plaintiff satisfies its burden to prove its
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`trade dress is not functional.
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`3.
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`There is Limited Likelihood of Confusion
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`When determining whether an alleged infringement is likely to cause confusion,
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`the Sixth Circuit requires district courts to examine and weigh several factors, including:
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`1. the strength of the plaintiff’s trade mark or trade dress;
`2. the relatedness of the goods or services;
`3. the similarity of the trademarks or trade dresses;
`4. evidence of actual confusion;
`5. the marketing channels used;
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 9 of 31 Pg ID 186
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`6. the degree of purchaser care;
`7. the defendant’s intent in selecting the trademark or trade dress; and
`8. the likelihood of expansion of the product or service lines.
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`Abercrombie & Fitch, 280 F.3d at 646; Frisch’s Restaurant, Inc. v. Shoney’s, Inc., 759
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`F.2d 1261, 1264 (6th Cir. 1985). The same factors apply whether the alleged
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`infringement relates to trademark or trade dress. Gray v. Meijer, Inc., 295 F.3d 641,
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`645 (6th Cir. 2002). “[A] plaintiff need not show that all, or even most, of the factors
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`listed are present in any particular case to be successful.” Wynn Oil Co. v. Thomas
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`(Wynn I), 839 F.2d 1183, 1186 (6th Cir.1988). The Sixth Circuit explains:
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`these factors imply no mathematical precision, but are simply a guide to
`help determine whether confusion is likely. They are also interrelated in
`effect. Each case presents its own complex set of circumstances and not
`all of these factors may be particularly helpful in any given case. But a
`thorough and analytical treatment must nevertheless be attempted. The
`ultimate question remains whether relevant consumers are likely to believe
`that the products or services offered by the parties are affiliated in some
`way.
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`Homeowners Group, Inc. v. Home Marketing Specialists, Inc., 931 F.2d 1100, 1107 (6th
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`Cir. 1991) (footnote omitted) (emphasis added).
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`a.
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`Strength of Plaintiff’s Trade Mark and Trade Dress
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`The strength of a trademark or trade dress bears a direct relationship to its
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`distinctiveness. In fact, courts are to consider the same factors. See Champions Golf
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`Club v. Champions Golf Club, 78 F.3d 1111, 1117 (6th Cir. 1996); Mexican Food
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`Specialties, 953 F. Supp. at 851.
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`The strength of a mark is a factual determination of the marks
`distinctiveness. The more distinct a mark, the more likely is the confusion
`resulting from its infringement, and, therefore, the more protection it is
`due. . . . “A mark is strong if it is highly distinctive, i.e., if the public readily
`accepts it as the hallmark of a particular source; it can become so
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 10 of 31 Pg ID 187
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`because it is unique, because it has been the subject of wide and
`intensive advertisement, or because of a combination of both.”
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`Frisch’s Restaurant, 759 F.2d at 1264 (quoting Callmann, Unfair Competition,
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`Trademarks, and Monopolies, ¶ 20.43 (4th ed. 1983)).
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`Plaintiff states that its trademark and trade dress have appeared on its products
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`in substantially the same form for over a century, to the point that they are immediately
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`recognizable. Defendant counters that Plaintiff’s trade dress is famous only if it includes
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`the name “Hershey’s;” without it, Defendant contends, Plaintiff’s trade dress is much
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`weaker, as the plethora of brown-colored, rectangular-shaped candy bars on the market
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`indicates. (See Def.’s Opp’n Ex. C.)
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`Defendant’s argument ignores the fundamental nature of a trade dress. In the
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`language of the Supreme Court, the trade dress of a product is the result of “its total
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`image and overall appearance,” not one or more isolated elements of its packaging.
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`Two Pesos, 505 U.S. at 765 n.1. Here, the strength of Plaintiff’s trade dress comes
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`from the combination of its features and its historical presence in the marketplace,
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`strengthened by decades of advertising.
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`There is no doubt that Plaintiff’s trade dress is both “highly distinctive” and
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`“widely accepted as the hallmark” of Hershey’s chocolates; this factor strongly suggests
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`a likelihood of confusion.
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`b.
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`Relatedness of Goods or Services
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`As the Sixth Circuit explains,
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`This factor admits of three possible scenarios: (1) cases in which the
`services of the parties are in direct competition, “in which case confusion
`is likely if the marks are sufficiently similar”; (2) cases in which the
`“services are somewhat related but not competitive, so that likelihood of
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 11 of 31 Pg ID 188
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`confusion may or may not result depending on other factors”; and (3)
`cases in which the “services are totally unrelated, in which case confusion
`is unlikely.” Services “are ‘related’ if the services are marketed and
`consumed such that buyers are likely to believe that the services, similarly
`marked, come from the same source, or are somehow connected with or
`sponsored by a common company.”
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`Champions Golf Club, 78 F.3d at 1118 (quoting Homeowners, 931 F.2d at 1108).
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`Plaintiff produces and markets chocolate and confectionery items, while
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`Defendant is a retailer of furniture and home furnishings. This basic difference
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`notwithstanding, Plaintiff argues that it licenses its trademarks and trade dress in
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`“various items for use in the home, such as bedding ensembles featuring the Hershey’s
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`brand.” (Pl.’s Reply Supp. Mot. 5.) At oral argument, counsel for Plaintiff also
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`mentioned Hershey’s brand pillows, and pillows in the shape of Hershey’s Kisses.
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`These statements aside, Plaintiff has not supplied any evidence of licensing for home
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`furnishings, or of the breadth of its licensing activities in this field.
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`To the extent that Plaintiff suggests that the parties’ products or services are in
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`direct competition, no evidence currently before the Court supports this. As to whether
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`these products or services might be “somewhat related,” such that other factors might
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`result in confusion, Plaintiff has not submitted evidence that it licenses its trademark or
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`trade dress to furniture makers, retailers, or in ways that could lead buyers to think Art
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`Van’s operations are “somehow connected with or sponsored by” Plaintiff. Unless such
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`evidence is presented, this case will likely fall in the “totally unrelated” category, with a
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`minimal chance of confusion on this factor.
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`c.
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`Similarity of the Trademarks or Trade Dresses
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`The similarity of trademarks, or trade dresses, is a factor of “considerable
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`weight.” General Motors Corp. v. Keystone Automobile Industries, Inc., 453 F.3d 351,
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`356 (6th Cir. 2006); Daddy’s Junky Music Stores v. Big Daddy’s Family Music Center,
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`109 F.3d 275, 283 (6th Cir. 1997). The proper test of similarity is not “side-by-side
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`comparison,” but “whether the mark ‘will be confusing to the public when singly
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`presented.’” Wynn I, 839 F.2d at 1188 (quoting Beer Nuts, Inc. v. Clover Club Foods
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`Co., 711 F.2d 934, 941 (10th Cir. 1983)). However, courts often begin by comparing
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`the trademarks or trade dresses at issue, and this is where our analysis starts as well.
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`See, e.g. Mexican Food Specialties, 953 F. Supp. at 851-52.
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`There is no question that Defendant’s “couch bar” bears a resemblance to a
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`Hershey’s chocolate bar, particularly to Plaintiff’s “Special Dark” bar. One feature in
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`particular is identical in both designs: each wrapper is composed of two distinct
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`elements, a silver foil containing the actual product, and a slightly narrower “sleeve”
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`inscribed with the company name. Because the sleeve is not as wide as the product
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`itself, the foil visibly protrudes along the edges of the candy bar.
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`Other aspects of the “couch bar” also evoke Hershey’s candy bars, but in a more
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`subtle way. For instance, the words “HERSHEY’S” and “ART VAN” are both printed in
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`stylized block lettering; however, their font, color and positioning are different: the letters
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`on Plaintiff’s iconic chocolate bar are silver and occupy the upper half of the wrapper,
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`whereas Defendant’s letters are white and sit squarely in the middle.
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`One aspect of Defendant’s design seems entirely different from Plaintiff’s trade
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`dress: Plaintiff’s famous bar is wrapped in brown paper, while Defendant’s “couch bar”
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`emerges from a sleeve that appears to be burgundy. However, at oral argument,
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`counsel for Plaintiff exhibited its “Special Dark” bar, with a wrapper divided roughly
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`between brown and a similar shade of red or burgundy.
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`Finally, other similarities are so generic that their impact on the overall analysis is
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`minimal: both designs are indeed, as Plaintiff points out, rectangular in shape, but the
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`relevance of this observation is limited, since most candy bars share this characteristic.
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`Likewise, Defendant’s brown-colored sofa evokes chocolate in general, not Plaintiff’s
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`chocolate, much less Plaintiff’s trademark or trade dress.
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`Cognizant of the fact that “[t]he appearance of the litigated marks side by side in
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`the courtroom does not accurately portray market conditions,” the Court now considers
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`the likelihood that, when viewed alone, Defendant’s design could be confusing to the
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`public. Daddy’s Junky Music Stores, 109 F.3d at 283 (quoting Homeowners, 931 F.2d
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`at 1106). This is necessary to “account for the possibility that sufficiently similar marks
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`‘may confuse consumers who do not have both marks before them but who may have a
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`general, vague, or even hazy, impression or recollection of the other party’s mark.’” Id.
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`(quoting Wynn I, 839 F.2d at 1188) (other internal quotations omitted).
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`One way to attempt to reproduce market conditions is to consider whether a
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`person glimpsing Defendant’s truck on the roadway would associate it with Plaintiff’s
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`brand, trademark or company. The Court finds this scenario unlikely. First, the words
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`“Art Van” are difficult to confuse with “Hershey’s;” they do not sound the same or bear
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`the same meaning. One evokes a famous brand of food products, the other a brand of
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`furniture stores within Michigan. See Wynn I, 839 F.2d at 1188 (holding that the use of
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`similar words or names on different products enhances the risk of confusion); Mexican
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`Food Specialties, 953 F. Supp. at 851-52 (same). Furthermore, the features a viewer is
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`most likely to notice about Defendant’s design are those which least resemble Plaintiff’s
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`trade dress: the candy wrapper’s color, the brand name, and the fact that the object
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`emerging from the wrapper is a sofa, not a bar of chocolate.
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`As for the feature which most directly evokes Plaintiff’s trade dress, the silver
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`“foil” along the edge of the wrapper, while it contributes to the overall illusion of the
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`“couch bar,” it is not one which so overwhelms the viewer that it immediately conjures
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`up Plaintiff’s chocolate bar.
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`On balance, the Court finds that consumers who have but a “general vague, or
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`even hazy, impression or recollection” of Plaintiff’ trademark and trade dress are
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`unlikely to confuse Defendant’s “couch bar” with Plaintiff’s iconic chocolate bar.
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`d.
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`Evidence of Actual Confusion
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`“Courts have consistently held that ‘evidence of actual confusion is undoubtedly
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`the best evidence of a likelihood of future confusion.’” Champions Golf Club, 78 F.3d at
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`1119 (quoting Wynn Oil Co. v. American Way Serv. Corp. (Wynn II), 943 F.2d 595, 601
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`(6th Cir. 1991). However, evidence of actual confusion is by nature difficult to produce,
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`and consequently it is “frequently discounted as unclear or insubstantial.” Wynn I, 839
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`F.2d at 1188 (quoting Bandag, Inc. v. Al Bolser’s Tire Stores, Inc., 750 F.2d 903, 914
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`(Fed. Cir. 1984). Accordingly, courts weigh this factor more heavily when evidence of
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`confusion exists, but less so when there is no such evidence. Id. (“[T]his factor is
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`weighted heavily only when there is evidence of past confusion, or perhaps, when the
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`particular circumstances indicate such evidence should have been available”)
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`(emphasis added).
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 15 of 31 Pg ID 192
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`Plaintiff admits that there has been no evidence of customer confusion so far, but
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`points to one newspaper article which, in describing Defendant’s online competition,
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`refers to “fun, eye-catching images -- such as a chocolate covered sofa partially
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`wrapped liked a Hershey bar.” (Compl. Ex. B.) Plaintiff submits that, if confusion has
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`not yet occurred, it is likely to manifest itself eventually. By itself, a newspaper article
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`noting a resemblance between Defendant’s truck design and Plaintiff’s trade dress is
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`not evidence of consumer confusion. See Champions Golf Club, 78 F.3d at 1120 (“Four
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`incidents is not a considerable quantum of evidence of actual confusion, and minimal or
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`isolated instances of actual confusion are, obviously, less probative than a showing of
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`substantial actual confusion”).
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`This factor weighs modestly against protection.
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`e.
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`Marketing Channels Used
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`“This factor . . . consists of considerations of how and to whom the respective
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`goods or services of the parties are sold.” Homeowners, 931 F.2d at 1110. It requires
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`the Court to analyze “(1) whether the parties use the same means to market the
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`product, and (2) whether the ‘predominant customers’ are the same.” General Motors,
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`453 F.3d at 357 (quoting Daddy’s Junky Music Stores, 109 F.3d at 285). As the Sixth
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`Circuit explains,
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`dissimilarities between the predominant customers of a plaintiff’s and
`defendant’s goods or services lessens the possibility of confusion,
`mistake, or deception. Likewise if the services of one party are sold
`through different marketing media in a different marketing context than
`those of another seller, the likelihood that either group of buyers will be
`confused by similar service marks is much lower than if both parties sell
`their services through the same channels of trade.
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`Homeowners, 931 F.2d at 1110.
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 16 of 31 Pg ID 193
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`Defendant states that its furniture products and related services are exclusively
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`available through its thirty Michigan stores and its website, and that it does not sell any
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`candy at its stores. As for Plaintiff, its chocolate and confectionary goods are widely
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`distributed in “a variety of retail channels including mass merchandisers and club,
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`grocery, drug, convenience and mom and pop stores.” (Compl. ¶ 19.) However,
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`Plaintiff argues that, like Defendant, it employs creative ways to reach its public, and
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`thus, “[i]t is likely that consumers . . . would view the advertisement as another example
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`of [Hershey’s] creative advertising.” (Pl.’s Br. Supp. Mot. 13.)
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`The differences between the parties marketing channels far outweigh their
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`similarities. First, although both rely heavily (or exclusively, in Defendant’s case) on
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`retail to reach their customers, their products are not available in the same stores.
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`Additionally, while both parties cater to the general public, there is no indication that
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`their customers are “predominantly” the same. Even if their customer bases overlap to
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`some extent – an inevitable result when one party is an internationally renowned brand
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`– the risk of consumers confusing a furniture outlet with a candy store, or vice-versa,
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`appears remote. Finally, notwithstanding Plaintiff’s undeniable creativity in marketing, it
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`seems far-fetched to suggest that the cleverness of this truck design will cause viewers
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`automatically to associate it with Hershey’s.
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`This factor weighs against the likelihood of confusion.
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 17 of 31 Pg ID 194
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`f.
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`Degree of Purchaser Care
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`This factor requires the Court to consider both the types of products at issue, and
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`the typical purchaser’s degree of sophistication. General Motors, 453 F.3d at 357. In
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`the Sixth Circuit, the principal source of guidance on this factor comes from
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`Homeowners:
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`Generally, in assessing the likelihood of confusion to the public, the
`standard used by the courts is the typical buyer exercising ordinary
`caution. However, when a buyer has expertise or is otherwise more
`sophisticated with respect to the purchase of the services at issue, a
`higher standard is proper. Similarly, when services are expensive or
`unusual, the buyer can be expected to exercise greater care in her
`purchases. When services are sold to such buyers, other things being
`equal, there is less likelihood of confusion.
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`931 F.2d at 1111.
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`Plaintiff argues that consumers accessing Defendant’s website are unlikely to
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`“exercise significant discretion in reviewing the product offering,” and suggests that the
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`same is true of those who observe Defendant’s truck on the street because they “are
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`not actually buying the truck at issue.” (Pl.’s Br. Supp. Mot. 13.) Defendant responds
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`that the image on its website is surrounded by hundreds of references to furniture.
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`Defendant also emphasizes the differences between purchasing candy and furniture.
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`It is difficult to compare the act of buying candy bars to that of shopping for
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`furniture. Candy may be purchased from a variety of different locations, from
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`convenience stores to supermarkets, from newspaper stands to pharmacies; in fact, it is
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`often displayed in the checkout aisles of supermarkets, the location reserved for
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`“impulse purchases.” By contrast, furniture is generally sold in specialized stores.
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`According to Defendant, its furniture is available only at its dedicated showrooms or on
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`2:08-cv-14463-VAR-DAS Doc # 15 Filed 10/24/08 Pg 18 of 31 Pg ID 195
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`its website. Another difference is that a candy bar seldom sells for more that three
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`dollars, whereas furniture items often cost several hundred, increasing the likelihood
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`that a consumer will exercise a greater level of care, whether buying furniture online or
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`at a brick-and-mortar store. Similarly, consumers are generally unlikely to spend more
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`than a few dollars on any single candy purchase. On the other hand, buying furniture is,
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`more often than not, a considerable expense, one for which consumers can be
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`expected to apply a higher degree of discretion. Finally, it is reas