Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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| This information is taken directly from the court opinion. It is not taken out of context nor is it altered. |
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From Soltex Polymer Corporation v. Fortex Industries, Inc, 832 F.2d 1325 (2d Cir. 1987)
In a comprehensive analysis of the factors enumerated by this court in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961), Judge McLaughlin considered whether Soltex had demonstrated, as a result of defendants' use of the mark FORTIFLEX, that "an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question." Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978) (per curiam), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979). Judge McLaughlin found that plaintiff's FORTIFLEX mark is suggestive of the nature of plaintiff's goods and has acquired, during the course of 30 years of continuous use, secondary meaning as a strong mark in the plastic resin industry; that the marks, while absolutely identical in terms of the word chosen, are used by both companies in conjunction with their respective corporate names and are presented as distinct logos; that with regard to defendants' animal-feeder line, there is "little or no" product proximity between defendants' animal-feeder containers and the end-product of plaintiff's resin, milk jugs and other similar containers, but that with regard to defendants' industrial container line, there is "modest" proximity in light of evidence presented at trial that industrial users of defendants' products are aware of the resin content of such products; that there was no evidence of actual consumer confusion of the two non-competing products; that there is "slim likelihood" that Soltex will ever "bridge the gap" and enter the finished plastics market; and that plaintiff concedes that defendants' products are of high quality. The district court also determined that defendants' use of the mark on its animal-feeder line did not result in a likelihood of confusion since the horse farmers who typically purchase these products are "akin to the casual" or relatively unsophisticated consumer and know little about Soltex's presence in the resin industry. On the other hand, the district court found that defendants' industrial container market does contain some comparatively sophisticated consumers who are familiar with Soltex's resin. Finally, the district court noted defendants' good faith in adopting a mark logically related to Fortex's "FORT" family of marks and in acting at all times relevant hereto without intent to infringe on plaintiff's mark. |
