Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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[page 478] Here, Montblanc offers four distinct theories of confusion: (1) source confusion; (2) post-sale confusion; (3) initial interest confusion;
and (4) subliminal confusion. Source confusion occurs when a customer, while recognizing that he is purchasing a product made or sold by a junior user,
believes that there is some endorsement between the junior user and senior user. See Playboy Enters., Inc. v. Chuckleberry Publ'g, Inc.,
486 F.Supp. 414, 428 (S.D.N.Y.1980). Post-sale confusion refers to confusion encountered by the general public, perceiving the junior user's
product after it has been purchased and associating the product with the senior user's product. See Nabisco, Inc. v. PF Brands, Inc.,
191 F.3d 208, 218 (2d Cir.1999). Initial interest confusion occurs when a purchaser, while fully aware of the source of the product, is attracted
to the junior user's product because of the competitor's use of a mark similar to that held by the senior user. See Mobil Oil, 818 F.2d at 259-60.
Finally, subliminal confusion occurs when the junior user's mark "confus[es] or dece[ives] [the consumer] on a subliminal or subconscious level,
causing the consumer to identify the properties and reputation of one product with another, although he can identify the particular manufacturer of each."
Ortho Pharm. Corp. v. American Cyanamid Co., 361 F.Supp. 1032, 1044 (D.N.J.1973).
[page 483] After considering the aforementioned factors, the Court finds that Montblanc has failed to establish any likelihood of source, post-sale, initial interest or subliminal confusion. The Court finds no likelihood of source confusion because Montblanc has failed to establish that consumers perceive any endorsement or affiliation between Montblanc and Aurora because of the Refurbished Optima decoband. The two companies are direct competitors in the premium writing instrument market, and the consumers that purchase these quality pens are sophisticated enough to be aware that there is no affiliation between Aurora and Montblanc. Moreover, the three-ring decoband is relatively weak. The mere presence of a three-ring band design, while perhaps indicative of a quality pen, does not convey that a pen must be affiliated with Montblanc. (Tr. 248-29, 266-67, 291-94.) Montblanc's allegations of post-sale confusion also fail. Montblanc's theory of post-sale confusion hinges on how consumers hold a pen, brandishing only its three-ring decoband. (Tr. 76-78, 265-66.) As an example, Montblanc provided a "still" photograph from the television program "Ally McBeal," in which the title character holds the Meisterstück horizontally, by its ends, so that only the deco-band is displayed. (See Ex. 64.) The Court finds such a theory of confusion, entirely contingent upon how a person might hold their pen, tenuous at best. Moreover, the weakness of the three-ring decoband, the failure to adduce any evidence of actual post-sale confusion, and the differences in overall appearance between the two pens weighs against a likelihood of post-sale confusion. Importantly, Montblanc's pen expert, Joseph McElyea, testified that, based on the three rings alone, the average person would not be able to tell that a pen was a Montblanc. (Tr. 248-49, 266-67.) Rather, Mr. McElyea testified that the average person would simply recognize the pen "as a high quality pen." (Tr. 267.) |
