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[page 554]
In Estee Lauder, the court found a likelihood of confusion between Estee Lauder's "100%" mark for a skin moisturizer and The Gap's competing line of "100%" body care products, notwithstanding the different distribution channels for the two products. 932 F.Supp. at 614-15. Like Clinique in this action, Estee Lauder sold its goods only through prestige retail outlets, while The Gap sold only in its mass, middle market Old Navy stores. Specifically, the court found "that there is very substantial cross-shopping - that is to say, that consumers who shop upscale department and specialty stores also frequent stores such as Old Navy and vice versa." Id. at 614. Moreover, to the extent that distinct channels of trade between Dep's and Clinique's products exist, those channels have little or no bearing on post-sale confusion as to the source of the goods. See Reebok Int'l Ltd. v. K-Mart Corp., 849 F.Supp. 252 (S.D.N.Y.1994), vacated by consent, 33 U.S.P.Q.2d 1863, 1994 WL 733616 (S.D.N.Y. Dec. 28, 1994); T. Anthony Ltd. v. Malletier, 30 U.S.P.Q.2d 1214, 1217, 1993 WL 659682 (S.D.N.Y. Nov. 24, 1993).

The facts with regard to proximity cut in different directions. First off, the products themselves are virtually identical. See Attached Exhibit B. Dep is aided, however, by the differing channels of distribution between the products. Nonetheless, the products appear in the same stores, even if Clinique might prefer it to be otherwise, and consumers therefore encounter them together. Moreover, the cross-shopping phenomenon minimizes the effect of different distribution channels. Plaintiff and defendant advertise [page 555] in the same publications. Weighing all of these considerations, the proximity of the products is sufficiently close to create some likelihood of confusion.


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