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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

[page 706]
The defendants' argument that even if consumers are initially confused about the source of the services, they are no longer confused at the point of sale, does not diminish the weight to be given [page 707] the survey.[9] "Actual confusion that is later dissipated by further inspection of the goods, services, or premises, as well as post-sale confusion, is relevant to a determination of a likelihood of confusion. `Infringement can be based upon confusion that creates initial consumer interest, even though no actual sale is finally completed as a result of the confusion.'" Elvis Presley Enters., 141 F.3d at 204 (quoting 3 McCARTHY ON TRADEMARKS AND UNFAIR COMPETITION, ?? 23:6-:7 (case citations removed)). So-called initial-interest confusion, occurring in the early stages of a business transaction, harms the trademark owner even if the prospective customer ultimately recognizes his mistake, because that customer might be diverted to the junior user instead of the trademark owner who expended the time and resources developing customer goodwill. See Elvis Presley Enters., 141 F.3d at 204; see also GILSON ON TRADEMARKS, ? 5.14[1][a] (2009). Initial-interest confusion is especially relevant when the parties are direct competitors in the same market. See Quantum Fitness Corp. v. Quantum Lifestyle Centers, LLC, 83 F.Supp.2d 810, 829-30 (S.D.Tex.1999) (considering initial-interest confusion important to the analysis when both parties were operators of fitness centers in the same market). The evidence shows that real estate yard signs are designed to draw attention to what can be seen and understood at a distance, on fleeting exposure. Such "drive-by" exposure to the signs increases the risk of initial-interest confusion that would benefit Trend Setter and harm RE/MAX. On this record, the survey evidence shows actual confusion among consumers as to the origin of the services advertised on the Trend Setter yard signs. This factor weighs strongly in favor of finding a likelihood of confusion.


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