Tabberone Logo

Tabberone is pronounced tab ber won
not tay ber own

Tabbers Temptations     www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me!
"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke


This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From WCVB-TV v. Boston Athletic Association, 926 F.2d 42 (1st Cir, 1991):

Second, the "rebuttable presumption" of confusion that this court set forth in Sullivan does not apply here. We concede that the Sullivan court said that "there is a rebuttable presumption" of confusion "about the shirts' source or sponsorship" arising from the fact that the defendants used the words "Boston Marathon" on the shirts, which use made customers more likely to buy the shirts. The court wrote that

when a manufacturer intentionally uses another's mark as a means of establishing a link in consumers' minds with the other's enterprise, and directly profits from that link, there is an unmistakable aura of deception.

Sullivan, 867 F.2d at 35 (emphasis added). As we read these words, they mean that the Sullivan record indicated that the defendant wanted to give the impression that his t-shirt was an "official" t-shirt, a fact that, in the sports world, might give a shirt, in the eyes of sports fans, a special "cachet." It makes sense to presume confusion about a relevant matter (namely, official sponsorship) from such an intent, at least in the absence of contrary evidence. Here, however, there is no persuasive evidence of any intent to use the words "Boston Marathon" to suggest official sponsorship of Channel 5's broadcasts. To the contrary, Channel 5 offered to "broadcast whatever disclaimers" the BAA might want--"every thirty seconds, every two minutes, every ten minutes"--to make certain no one thought the channel had any special broadcasting status. Nor is there any evidence that Channel 5 might somehow profit from viewers' wrongly thinking that the BAA had authorized its broadcasts. Indeed, one would ordinarily believe that television viewers (unlike sports fans who might want to buy an official t-shirt with the name of a favorite event, team or player) wish to see the event and do not particularly care about the relation of station to event-promoter. See AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 353 (9th Cir.1979) (when deciding whether there is confusion "the wholly indifferent [consumers] may be excluded") (cites omitted); 2 J. McCarthy Sec. 23.27 at 129 & n. 20 (trademark law does not "protect those buyers who ... [are] 'indifferent' " to the mark).

counter for iweb