Case: 4:08-cv-00358-TCM Doc. #: 85 Filed: 10/16/08 Page: 1 of 22 PageID #: 1420
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`) Case No. 4:08cv0358 TCM
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`ANHEUSER-BUSCH, INC.,
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` Plaintiff,
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` vs.
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`VIP PRODUCTS, LLC,
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` Defendant.
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`MEMORANDUM AND ORDER
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`This is an action1 filed by Anheuser-Busch, Incorporated ("Plaintiff") against VIP
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`Products, LLC, ("VIP"), for trademark infringement, unfair competition, and dilution.
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`Pending is Plaintiff's motion for a preliminary injunction, see Fed.R.Civ.P. 65, to bar VIP from
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`manufacturing, distributing, marketing, and selling a dog squeeze toy called "Buttwiper." The
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`Court heard testimony from four witnesses2 and received evidence on the motion on August
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`27, 2008, and now finds and concludes as follows.
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`Findings of Fact
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`Plaintiff is a leading American brewer. Plaintiff's beers are brewed in twelve breweries
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`in the United States alone and sold to exclusive wholesalers who then sell to retailers and
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`other accounts. Although "Budweiser" is not its top-selling beer, it is Plaintiff's flagship
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`brand; its label is treated with "reverence" by Plaintiff and its employees. The label is also a
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`1The case is before the undersigned United States Magistrate Judge by written consent of the
`parties. See 28 U.S.C. § 636(c).
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`2Plaintiff called George Mantis; Thomas Shipley, Jr.; and Thomas Prindiville. VIP called
`Stephen Sacra.
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`1
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`registered trademark. Plaintiff has used the "Budweiser" word mark, also a registered
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`trademark, and the "Budweiser" label design in the United States since 1876. The
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`"Budweiser" bottle is used in much of Plaintiff's advertising. "Budweiser" is sold to 829 chain
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`retailers across the country. (Pl. Ex. 32.) From 2000 to 2007, Plaintiff sold approximately
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`three billion dollars of "Budweiser" to its wholesalers. (Pl. Ex. 33.) In 2008, Plaintiff spent
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`approximately 156 million dollars in advertising in the United States on "Budweiser" alone.
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`(Pl. Ex. 35.) Special emphasis is placed in advertising to 21 to 28 year old consumers.
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`Along with beer products, Plaintiff sells various non-beer items. (Pl. Exs. 40-47).
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`These items range in character from door hangers to shirts to dog leashes and collars to beach
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`chairs. (Id.) Each has "Budweiser" printed on it in some form. (Id.) Some of these items,
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`including a dog bed, have a replica of the "Budweiser" label. (Id.) Other pet products are sold
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`by Plaintiff, including food/water bowls, frisbees, balls, leashes, collars, and pet mats. (Pl.
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`Exs. 40-47, 49-50.) Plaintiff has received $147,500 in sales of dog items from 1980 to date.
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`(Pl. Ex. 48.) Plaintiff does not sell or license any type of dog squeeze toy.
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`The main purpose of the sale of non-beer items is to place Plaintiff's trademark into
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`consumers' hands, but not at the cost of the brand image. These branded items are sold in
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`retail stores, grocery stores, convenience stores, and on-line. Between 2000 and 2007,
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`revenue of 400 million dollars was received by Plaintiff from the sale of these items in the
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`United States. (Pl. Ex. 37.) This figure does not including licensing revenue. (Id.)
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`Plaintiff is careful and cautious in selecting licensees with which to place its
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`trademarks. Plaintiff's licensing agreement requires that if its licensees learn of any
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`infringement or of the "existence, use or promotion of any mark or design similar" to Plaintiff's
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`2
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`licensed properties, the licensees are to report such. (Pl. Ex. 38, § 11.) Additionally,
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`Plaintiff's employees are vigilant in advising its legal department when any possible
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`infringement of Plaintiff's brands are discovered. Plaintiff believes that if it permits an
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`unauthorized use of its properties, the value of those properties and licensing agreements is
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`decreased. Also, the value of its properties would be diluted if Plaintiff's marks are placed on
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`inferior or improper items and quality stores would be less likely to market Plaintiff's branded
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`items.
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`George Mantis is the president and founder of the Mantis Group, a survey research
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`firm that designs surveys, analyzes the results and reports its findings.3 Mr. Mantis designed
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`and conducted a survey to determine whether VIP's product, "Buttwiper," is likely to cause
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`confusion with Plaintiff's product, "Budweiser." (Pl. Ex. 21.) Interviews for the survey were
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`conducted from April 16 to May 8, 2008; 327 individuals were interviewed. These
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`individuals were volunteers found in nine shopping malls, one in each United States census
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`division, i.e., New Jersey, Connecticut, Michigan, Illinois, Tennessee, Florida, Texas,
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`California, and Colorado, that represent all four United States census regions, i.e., the East,
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`Midwest, South, and West. (Pl. Ex. 26.) The individuals were 21 years of age or older,4 were
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`likely to purchase a dog toy within the next six months, and were not employed by an entity
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`3VIP stipulated that Mr. Mantis is an expert in the field of survey research. (Pl. Ex. 19.)
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`4Due to Plaintiff's sensitivity to not interviewing individuals who are not of legal drinking age,
`those under the age of 21 were excluded from the survey. Mr. Mantis testified, without
`contradiction, that excluding those individuals who were 18, 19, or 20 years old had no real affect
`on the survey results because of the small portion of the adult population they represented
`(approximately 6%).
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`3
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`that profited from the sale of pet products. (Pl. Ex. 21 at 2.) Mr. Mantis testified that when
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`creating the survey he relied on seven factors cited in the Manual of Complex Litigation and
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`procedures described in the Federal Judicial Center Reference Guide on survey research. (Tr.
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`at 23-24.) Those factors include (1) properly choosing the survey universe, i.e., which
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`individuals to include; (2) obtaining a representative sample of that universe; (3) making
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`certain that the interviewers are qualified; (4) making certain that the interviewers follow
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`prescribed procedures; (5) making the questions in the survey clear, relevant, and non-leading;
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`(6) making certain that the analysis plan comports with accepted statistical principles and is
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`relevant; and (7) making certain that the entire survey process is objective. (Tr. at 24-25.)
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`Professional interviewing agencies conducted the questioning of individuals with the
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`survey designed by Mr. Mantis. After a person was found to be qualified for the survey, he
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`or she was escorted into an interview room. An interviewing specialist instructed each
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`interviewer and sat in on his or her first several interviews to make certain the proper
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`procedures were followed. (Pl. Ex. 24.) The process was a "double-blind survey," i.e., neither
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`the interviewer nor the interviewee knew the purpose of the survey. The interviewees were
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`instructed not to guess and that "I don't know" was an acceptable answer. The interviewee
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`was shown either the test product (Pl. Ex. 28) or a control product5 (Pl. Ex. 29) and allowed
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`5The control product is used in confusion surveys to make certain that any confusion between
`the products at issue is not caused by an unrelated factor. In this case, the focus was on any
`confusion between "Buttwiper" and "Budweiser" and whether that confusion was caused by
`something unrelated to the "Budweiser" mark or trade dress. Therefore, to be effective the control
`product could not share any characteristics with the test product that was being tested. (Tr. at 37.)
`In the instant case, the control product had a different color scheme than the test product, the name
`was changed to something that did not have a similar sound, and the label design was modified. (Tr.
`at 37-38; Pl. Ex. 29.) An analogy described by Mr. Mantis is when half the test subjects are given
`a placebo in a drug test and the other half are given the new drug. (Tr. at 37.)
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`4
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`to view the items at their leisure.6 The interviews were conducted with the survey questions.
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`(Pl. Ex. 24) A validation question was used to re-contact the interviewees to verify that the
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`interview had occurred. (Pl. Ex. 27.) All the survey responses are in Plaintiff's Exhibit 30.
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`Analyzing those responses according to the accepted market research principles in the
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`survey, there was a 30.3% net confusion rate. (Pl. Ex. 20; Pl Ex. 21 at 10.) In other words,
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`one of three people interviewed mistakenly believed that VIP's "Buttwiper" is manufactured
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`and marketed by, or with the approval of, Plaintiff or that there is some affiliation between
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`"Buttwiper" and Plaintiff. (Pl. Ex. 21 at 11.)
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`Plaintiff discovered "Buttwiper" when Thomas Prindiville, Plaintiff's Group Manager
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`of Consumer Marketing, and an associate were conducting an internet word search using the
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`term "Budweiser Beer" on a Sears & Roebuck Company website in search for a new product
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`– an ice chest with the "Budweiser" name attached. Along with the "Budweiser" ice chest,
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`search results included "Buttwiper."
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`Stephen M. Sacra is the owner and operator of VIP. His company creates,
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`manufactures, and sells high quality, durable dog toys. VIP sells three brands of dog toys:
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`"Tuffy," "Mighty," and "Silly Squeakers." "Buttwiper" is with the "Silly Squeakers" brand.
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`VIP's dog toys are high-end and cost more than most, if not all, other dog squeeze toys on the
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`market. "Silly Squeakers's" first squeeze toy was a two-headed object called "Mr. Poop."
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`"Buttwiper" and "Cataroma" – packaged with "Buttwiper" – were created to augment "Mr.
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`6The cost of an item is relevant to the time a potential purchaser views the item. Here,
`although the cost ($20.00 for two pet toys) is not a major expense, the subjects were never rushed
`while they were observing the two products at issue. This is an accepted survey format.
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`5
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`Poop." The idea for "Buttwiper" came from a Stanley Steamer commercial in which a dog
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`scoots across the floor while rubbing its bottom on the carpet. The reaction of the mother to
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`the dog's actions suggests that the carpet will now need to be cleaned. This scooting action
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`is depicted on the label of the "Buttwiper" squeeze toy. Mr. Sacra directed a graphic designer
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`to "make a knock-off of a beer bottle label" for "Budweiser"/"Buttwiper." (Def. Ex. 53.)
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`Specifically, he advised the designer to change the "Budweiser" label and make a knock-off
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`of it. (Sacra Dep. at 129.) The first version of the "knock-off" appears in Exhibit 53; the final
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`version is in Exhibit 55. The second version of "Buttwiper" is closer to the "Budweiser" label
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`than is the first. The use of the "knock-off" of the "Budweiser" brand was not authorized by
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`Plaintiff. Mr. Sacra testified that the dark line to the rear of the dog on the "Buttwiper" label
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`is not a trail of feces but is a "deep shadow."
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`Shipments of "Buttwiper" began on September 13, 2007. The "Buttwiper" toy is sold
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`in a two-pack with "Cataroma," another squeeze toy, for approximately $19.95. The two-pack
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`is sold in over 500 pet specialty stores, none of which are one of the 829 retailers listed on
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`Plaintiff's Exhibit 32. VIP sells 200 other dog toys in addition to the "Buttwiper"/"Cataroma"
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`product. VIP markets its products via trade shows; only 2% are sold on its website. Eleven-
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`thousand five-hundred "Buttwiper" products have been manufactured, 7 totaling $67,000 in
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`gross revenue and approximately $29,000 in profit for VIP. (Def. Ex. 60.) Mr. Sacra testified
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`that approximately 3500 "Buttwiper"/"Cataroma" two-packs have been sold. There are
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`approximately 3178 remaining in inventory.
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`7"Buttwiper" is made in China.
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`6
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`It is the opinion of both Mr. Prindiville and Thomas Shipley, Jr., Plaintiff's Director of
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`Marketing for the "Budweiser" brand, that VIP's "Buttwiper" squeeze toy creates a negative
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`impression of the "Budweiser" brand. There is no evidence that Plaintiff has lost any sales
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`because of "Buttwiper." Neither Mr. Prindiville nor Mr. Shipley have heard of any specific
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`confusion by consumers caused by "Buttwiper."
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`Plaintiff's Exhibits 31 and 36 are photographs of a "Budweiser" beer and of
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`"Buttwiper." The Court finds that the "Buttwiper" packaging, labeling, colors, and trade dress
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`are similar to those of Plaintiff's "Budweiser" label and trade dress.
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`Discussion
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`Plaintiff is seeking a preliminary injunction on its Missouri and federal trademark
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`infringement, unfair competition, and dilution claims.8 Factors the Court must consider when
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`resolving Plaintiff's request are: "(1) the threat of irreparable harm to [Plaintiff]; (2) the state
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`of the balance between this harm and the injury in granting the injunction will inflict on [VIP];
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`(3) the probability of [Plaintiff] succeeding on the merits; and (4) the public interest." Phelps-
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`Roper v. Nixon, 509 F.3d 480, 484 (8th Cir. 2007). The Court's analysis for each claim will
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`begin with an assessment of the likelihood of success on the merits. See Planned Parenthood
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`Minn. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc) ("If the party with the burden
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`8In its seven-count complaint, Plaintiff alleges federal trademark infringement, in violation of
`§ 32 of the Lanham Act, 15 U.S.C. § 1114 (Count I); unfair competition, in violation of § 43(a) of
`the Lanham Act, 15 U.S.C. § 1125(a) (Count II); dilution, in violation of 15 U.S.C. § 1125(c) (Count
`III); Missouri trademark infringement, in violation of Mo. Rev. Stat. § 417.056 (Count IV);
`trademark dilution, in violation of Mo. Rev. Stat. § 417.061 (Count V); trademark infringement, in
`violation of Arizona law, Ariz. Rev. Stat. § 44-1451, and "the laws of numerous other states" (Count
`VI); trademark dilution, in violation of Arizona law, Ariz. Rev. Stat. § 44-1448, and "the laws of
`numerous other states" (Count VII); and common law trademark infringement and dilution (Count
`VIII). At issue in the motion for preliminary injunction are the claims in Counts I through V.
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`7
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`of proof makes a threshold showing that it is likely to prevail on the merits, the district court
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`should then proceed to weigh [the other three] factors."); Shrink Mo. Government PAC v.
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`Adams, 151 F.3d 763, 765 (8th Cir. 1998) (describing this consideration as the most
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`important of the four factors).
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`I. Trademark Infringement/Unfair Competition Claims.9 Section 32 of the Lanham Act
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`makes it illegal for any person, without the consent of the registrant, "to use in commerce any
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`reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with
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`the sale, offering for sale, distribution, or advertising of any goods or services on or in
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`connection with which such use is likely to cause confusion, or to cause mistake, or to
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`deceive[.]" 15 U.S.C. § 1114(1)(a). "Section 43(a) of the Lanham Act, 15 U.S.C. §
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`1125(a)(1), creates a federal cause of action for trade dress infringement." Gateway, Inc. v.
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`Companion Prods., Inc., 384 F.3d 503, 507 (8th Cir. 2004). "'Trade dress is the total image
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`of a product, the overall impression created, not the individual features.'"
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`Id. (quoting
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`Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863, 868 (8th Cir. 1994)).
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`A. Likelihood of Success on the Merits.
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` At the preliminary injunction stage of
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`litigation, the movant must establish "a substantial likelihood of prevailing on the merits of
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`[its] claim." Phelps-Roper, 509 F.3d at 485. This is a question of whether the movant "has
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`a 'fair chance of prevailing,'" id. (quoting Heartland Acad. Cmty. Church v. Waddle, 335 F.3d
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`684, 690 (8th Cir. 2003)), and not whether the movant has proven "'a greater than fifty per
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`cent likelihood [it] will prevail on the merits,'" id. (quoting Dataphase Sys., Inc. v. C L Sys.,
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`9Neither party distinguishes these two claims in their briefs. Neither will the Court.
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`8
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`Inc., 640 F.2d 109, 113 (8th Cir. 1981)). The determination of whether Plaintiff has
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`established a likelihood of success must be made in the context of its various claims.
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`To succeed on the merits of its infringement claim, Plaintiff must prove that its trade
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`dress "(1) [is] inherently distinctive or [has] acquired distinctiveness through secondary
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`meaning; (2) [is] nonfunctional; and (3) its imitation would result in a likelihood of confusion
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`in consumers' minds as to the source of the product." Gateway, Inc., 384 F.3d at 507 (citing
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`Insty*Bit, Inc. v. Poly-Tech Indus., Inc., 95 F.3d 663, 667 (8th Cir. 1996)); accord Children's
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`Factory, Inc. v. Benee's Toys, Inc., 160 F.3d 489, 493 (8th Cir. 1998).
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`It is undisputed that Plaintiff has carried its burden on the first prong. VIP has
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`stipulated to the strength of the "Budweiser" bottle label, dress design and trademark. See Pl.
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`Ex. 31 (color photograph of "Budweiser" beer bottle.) The parties have stipulated that the
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`"Budweiser" label is distinctive and has priority to "Buttwiper." Indeed, the "Budweiser" label
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`has been a national and global icon since 1876.
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`Plaintiff has also carried its burden of satisfying the second prong. "In order to be
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`protected, [Plaintiff's] trade dress must be nonfunctional." Gateway, Inc., 384 F.3d at 508.
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`"[T]rade dress is nonfunctional 'if it is an arbitrary embellishment primarily adopted for
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`purposes of identification and individuality.'" Id. (quoting Prufrock Ltd. v. Lasater, 781 F.2d
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`129, 132-33 (8th Cir. 1986)); accord, Insty*Bit, Inc., 95 F.3d at 673; Aromatique, Inc., 28
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`F.3d at 873. On the other hand, it is functional "'if it is essential to the use or purpose of the
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`article or it affects the cost or quality of the article.'" Home Builders Ass'n of Greater St.
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`Louis v. L&L, 226 F.3d 944, 948 (8th Cir. 2000) (quoting Inwood Labs., Inc. v. Ives Labs.,
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`Inc., 456 U.S. 844, 850 n.10 (1982)). Clearly, the "Budweiser" trade dress is nonfunctional.
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`9
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`The third prong is the likelihood of confusion as to the source of the allegedly
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`infringing product. Factors to be considered in evaluating this likelihood are: "1) the strength
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`of [Plaintiff's] mark; 2) the similarity between [Plaintiff's] and [VIP's] marks; 3) the degree to
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`which the allegedly infringing product competes with [Plaintiff's] goods; 4) the alleged
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`infringer's intent to confuse the public; 5) the degree of care reasonably expected of potential
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`customers[;] and 6) evidence of actual confusion." Davis v. Walt Disney Co., 430 F.3d 901,
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`903 (8th Cir. 2005) (citing SquirtCo. v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir. 1990)).
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`To establish confusion, it is not necessary for consumers to purchase the allegedly infringing
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`item believing that the item was manufactured by the plaintiff. Insty*Bit, Inc., 95 F.3d at 671.
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`VIP has conceded that only the last two factors are at issue: the degree of care and the
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`evidence of actual confusion.
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`(1) Degree of Care Expected of Potential Customers. The uncontroverted evidence
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`is that each survey participant was allotted as much time as they wished to view the test
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`product or the control product. They were not rushed. VIP argues, but presents no case law
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`or opposing evidence, that because "Buttwiper" is more expensive than a typical dog squeeze
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`toy, the survey is invalid. There is evidence that some of Plaintiff's dog-related items are of
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`a similar cost. Moreover, Mr. Mantis's uncontroverted expert opinion was that due to the low
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`cost of this type of item ($10 each for 2 squeeze toys) the findings of the survey are reasonable
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`and credible. If the item was a $25,000 automobile, there may be an issue; with today's
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`economy, a $10 dog toy is not considered a high-end product.
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`(2) Actual Confusion. Plaintiff's evidence of actual confusion comes primarily from
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`the Mantis survey, which reported a 30% confusion rate among potential purchasers of dog
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`10
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`toys. Consumer surveys are "useful evidence of the likelihood of confusion," but "are not
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`required for such a determination." Insty*Bit, Inc., 95 F.3d at 671 (citing Woodsmith Publ'g
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`Co. v. Meredith Corp., 904 F.2d 1244, 1249 (8th Cir. 1990) (reviewing case law from the First
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`and Seventh Circuits holding that surveys are "valuable" in demonstrating actual confusion
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`and are the most "accurate evidence" of actual confusion)). See also Gateway Inc., 384 F.3d
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`at 510 (finding that adequate evidence of actual confusion was established by nationwide
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`survey resulting in 39% of those surveyed believing that the plaintiff had manufactured or
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`sponsored the defendant's product, and noting that this confusion rate "substantially
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`exceed[ed]" the 11% rate previously held to be sufficient to establish actual confusion);
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`Mutual of Omaha Ins. Co. v. Novak , 836 F.2d 397, 400 (8th Cir. 1987) (finding it
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`appropriate that survey was used to determine actual consumer confusion between insurance
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`company's trademark and similar design placed on T-shirts and concluding that district court
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`had not erred in giving that survey significant weight; 400 people over age of 21 in four cities
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`were shown defendant's design on T-shirt, a design "reminiscent" of plaintiff's marks and also
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`used by defendant on other articles of clothing, buttons, and coffee mugs; 25% of those
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`interviewed believed that the insurance company "[went] along" with the defendant's design).
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`In the instant case, the survey was conducted in a technically proper manner using
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`relevant and non-confusing questions.10 See ConAgra, Inc. v. George A. Hormel, Co., 990
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`F.2d 368, 370 (8th Cir. 1993) (holding that evidentiary value of surveys for showing of actual
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`confusion in trademark cases depends on the relevance of the questions asked and the
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`technical adequacy of the survey). The 327 participants in the survey included only those
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`10See Pl. Ex. 24 (copy of survey).
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`11
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`individuals who, within the next six months, were likely to purchase a dog toy. They were
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`able to view "Buttwiper" and a control item for as long as they wished. After they were
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`finished looking at the items, the items were removed and the survey questions were asked.
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`Examples of core questions are as follows: "What company or companies do you think makes
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`or puts out the product you just saw?" (question 1); "Do you think that the company that
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`makes or puts out the product you just saw puts out any other products or brands?" (question
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`5); "What other products or brands do you think are put out by that company?" (question 6);
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`"Whether or not you know the name of the company that makes or puts out the product you
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`just saw, do you think that company puts out any other products or brands?" (question 10);
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`"Do you think that the company that makes or puts out the product that you just saw does or
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`does not have a business connection or business affiliation with any other company or brand?"
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`(question 15); "Do you think that the product that you just saw is or is not made or put out
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`with the approval or sponsorship of any other company or brand?" (question 18). (Pl. Ex. 24.)
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`From the responses to these and other questions in the survey, Mr. Mantis concluded
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`that 30.3% of those surveyed had the mistaken belief that "Buttwiper" is made or put out by
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`or with the approval or sponsorship of the maker of "Budweiser" – Plaintiff – or that there is
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`a business relationship between the maker of "Budweiser" and the maker of "Buttwiper." Mr.
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`Mantis concluded that the confusion was because of the name and/or the appearance of
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`"Buttwiper." VIP's cross-examination of Mr. Mantis focused on several specific answers to
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`questions in the survey. For example, an individual in the test group answered "Budweiser
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`I guess" "[b]ecause of the beer bottle and colors" when asked what company or brand put out
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`or approved of the making of "Buttwiper"; another answered "Budweiser I guess" when asked
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`12
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`Case: 4:08-cv-00358-TCM Doc. #: 85 Filed: 10/16/08 Page: 13 of 22 PageID #: 1432
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`what company made "Buttwiper," explaining it looked like a "Budweiser" bottle. (Pl. Ex. 24
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`at 7-12; Pl. Ex. 30 at 26.) Mr. Mantis was asked on cross-examination how he explained the
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`"I guess" when he had earlier testified that interviewees were instructed not to guess. (Tr. at
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`53.) Mr. Mantis replied that it was not uncommon for people "to articulate their thoughts in
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`this particular fashion." (Id. at 54.) His cross-examination also covered the survey universe,
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`the cost of the items that were to be purchased, the length of time the survey participant was
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`able to view the items, the socioeconomic background of those interviewed, the exclusion of
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`those individuals under 21 years of age from the survey, and the control product. Mr. Mantis's
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`response to the "I guess" questions and his responses to the other areas of inquiry satisfy the
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`Court that Mr. Mantis properly and carefully evaluated each and every survey answer in
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`reaching his conclusion. His testimony is more than sufficient to allow the Court to accept
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`the survey findings.
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`VIP contends that the survey is deficient because "Buttwiper" is on the high-end of the
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`cost of dog squeeze toys, yet the survey did not include cost as a factor. The Court disagrees.
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`The "universe" of the survey included those who, within the next six months, were likely to
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`purchase such a dog toy. Interviewees were able to view the dog toy for as long as they
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`wished. Although the interviewees were not advised of the cost of the item (approximately
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`$20 for the two-pack), VIP produced no evidence that the actual cost of $10 per dog toy is so
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`significant as to cause the survey results to be faulty.
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`VIP also challenges the age group of the survey universe, specifically the exclusion of
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`individuals between the ages of 18 and 21 years. Mr. Mantis testified that this exclusion had
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`no effect on the survey because of the small segment of the population, approximately 6%,
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`Case: 4:08-cv-00358-TCM Doc. #: 85 Filed: 10/16/08 Page: 14 of 22 PageID #: 1433
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`that fit in that particular category. VIP presented no evidence to the contrary. Furthermore,
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`VIP presented no evidence through its own survey and relied instead on its cross-examination
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`of Mr. Mantis to establish its position.
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`For the foregoing reasons, the Court finds that there is credible evidence of a 30%
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`confusion rate between "Budweiser" and "Buttwiper."
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`In addition to the confusion demonstrated by the survey, Plaintiff submitted an example
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`of actual confusion when its employees conducted a computer word search on the Sears &
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`Roebuck website. The employees used "Budweiser Beer" as the search phrase when looking
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`for a "Budweiser" cooler. In addition to the cooler, the search results included VIP's
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`"Buttwiper" product. Although the Court is not a computer expert, it is evident that the
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`individual who programmed the website or input the items connected "Buttwiper" to
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`"Budweiser."
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`The issue of confusion falls considerably on Plaintiff's side of the ledger. For the
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`foregoing reasons, the Court finds that Plaintiff has proven actual confusion between
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`Plaintiff's "Budweiser" and VIP's "Buttwiper."
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`(3) Parody. "Parody11 is another factor to consider in determining the likelihood of
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`confusion, and casts several of the above-cited six factors[, see page 10, supra,] in a different
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`light." Utah Lighthouse Ministry v. Found. for Apologetic Info. in Research , 527 F.3d
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`1045, 1055 (10th Cir. 2008). See also Elvis Presley Enters. v. Capece, 141 F.3d 188, 198
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`11"A parody is a humorous or satirical imitation of a work of art that 'creates a new artwork
`that makes ridiculous the style and expression of the original.'" Eli Lilly & Co. v. Nat'l Answers,
`Inc., 233 F.3d 456, 463 (7th Cir. 2000) (quoting Rogers v. Koons, 960 F.2d 301, 309-10 (2nd Cir.
`1992)).
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`(5th Cir. 1998) ("[P]arody is not a defense to a trademark infringement action, but rather
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`another factor to be considered, which weighs against a finding of a likelihood of confusion.").
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`"A parody creating a likelihood of confusion may be subject to a trademark infringement
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`action." Anheuser-Busch, Inc. v. Balducci Publ'ns , 28 F.3d 769, 776 (8th Cir. 1994).
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`"'Some parodies will constitute an infringement, some will not. But the cry of "parody!" does
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`not magically fend off otherwise legitimate claims of trademark infringement or dilution.
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`There are confusing parodies and non-confusing parodies. All they have in common is an
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`attempt at humor through the use of someone else's trademark. A non-infringing parody is
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`merely amusing, not confusing." Dr. Seuss Enters., L.P. v. Penguin Books, USA, 109 F.3d
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`1394, 1405 (9th Cir. 1997) (quoting McCarthy on Trademarks, § 31.38[1] at 31-216 (rev. ed.
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`1995)).
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` Here, Mr. Sacra directed a graphic designer to create a knock-off of the "Budweiser"
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`trade dress for use on his product. Although "intent to parody is not an intent to confuse the
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`public," Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 263 (4th
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`Cir. 2007), "[e]vidence that the alleged infringer chose a mark with the intent to copy, rather
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`than randomly or by accident, typically supports an inference of likelihood of confusion,"
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`Utah Lighthouse Ministry, 527 F.3d at 1055.
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`In support of its parody defense, VIP relies heavily on two cases: Louis Vuitton
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`Malletier, supra, and Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp.2d
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`410 (S.D. N.Y. 2002). A review of these two cases reveals facts and law distinguishable from
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`the instant case. The first case involves a defendant company manufacturing and selling
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`"Chewy Vuitton" dog toys that were successful parodies of the "Louis Vuitton" mark and trade
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`dress. Louis Vuitton, 507 F.3d at 258. Unamused, plaintiff, a well-known manufacturer of
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`luxury handbags and luggage, sued the dog toy manufacturer for trademark infringement. The
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`court found that there was a successful parody, but there was no likelihood of confusion. Id.
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`at 261, 263. However, unlike in the instant case, there was no evidence that Louis Vuitton
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`sold dog toys with its brand; there was no evidence by Louis Vuitton of any survey or of
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`confusion; and there was an appreciable difference in the cost of any Louis Vuitton product
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`and the dog toy at issue. Id. at 260-61, 263. In the instant case, Plaintiff presented survey
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`evidence of confusion; evidence that Plaintiff sells a number of pet-related items with its
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`brand; and evidence that the competing items are similar in cost, i.e., a $11 "Budweiser" dog
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`leash, a $11 "Budweiser" collar, a $10 "Buttwiper" dog toy. (See Pl. Exs. 40-44.)
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`The Tommy Hilfiger case is also distinguishable. That case involves a defendant
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`company manufacturing and selling dog perfume called "Timmy Holedigger." Sued by
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`plaintiff for trademark infringement and trademark dilution, among other claims, defendant
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`raised parody as a defense. Plaintiff owned the "Tommy Hilfiger" and flag design trademarks
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`and used them for its high-end products, including perfumes. Tommy Hilfiger, 221 F.
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`Supp.2d at 412. The court held that the parties' products did not compete, noting that "courts
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`are most vigilant to guard against a likelihood of confusion when the plaintiff and the
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`defendant use their marks on directly competing products." Id. at 418. There was no
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`evidence of confusion, nor did the plaintiff produce any survey evidence supporting such. Id.
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`at 419.
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`On the other hand, there are two cases from the Eighth Circuit Court of Appeals that
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`are more on point. In both Anheuser-Busch, 28 F.3d at 772, 774-75, and Mutual