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the intellectual property blog of david lilenfeld lilenfeld pc articles by david lilenfeld about david lilenfeld contact david m. lilenfeld 31 jan/17 32 start working from here 3 8. defendant’s intent 4 “[a]n intent to confuse customers is not required for a finding of trademark 5 infringement.” goto.com, inc , 202 f.3d at 1208. accordingly, this factor is of “minimal 6 importance.” id. (declining to attempt to divine the defendant’s intent). clearly food 7 establishes that top shelf’s founders were aware of the clearly canadian brand, product, 8 and trademark at the time they adopted the clearly kombucha mark, which weighs in 9 favor of infringement.8 see (whittaker decl. ex. b (“cargle dep.”) at 99:17-101:22); 10 surfvivor media , 406 f.3d at 634. for its part, top shelf’s founder testifies that the 11 intent in changing the name of its product to clearly kombucha was both to emphasize 12 the “clear” nature of its product, which is the result of a filtration system that removes 13 floating solids ordinarily found in kombucha, as well as to “reflect transparency in the 14 brewing process.” (cargle decl. ¶¶ 12-13; zarrow dep. at 16:22-17:2.) this minimal 15 evidence does little to aid a jury’s determination of intent. because this factor is 16 “minimally important,” the court concludes that this factor is neutral for the purposes of 17 summary judgment. see goto.com, inc , 202 f.3d at 1208. 18 9. summary 19 the ninth circuit has consistently observed that, “[b]ecause of the intensely 20 factual nature of trademark disputes, summary judgment is generally disfavored in the 21 8 although clearly food contends that top shelf purchased bottles of clearly canadian in 22 august of 2011 in order to mimic their labeling, clearly food puts forth no evidence supporting this assertion. ( compare resp. (citing whittaker decl. ex. p) with whittaker decl. (omitting exhibit p).) 1 trademark arena.” entrepreneur media, inc , 279 f.3d at 1140. that observation holds 2 true here. the court finds that, on this record, a majority of the factors—namely, the 3 similarity of marks, the relatedness of the products, the strength of the mark, actual 4 confusion, and consumer degree of care—raise questions of material fact that a jury could 5 reasonably resolve in clearly food’s favor. more importantly, the court finds that, taking 6 the evidence in the light most favorable to clearly food, a jury evaluating the totality of 7 the circumstances could find that these factors show a likelihood of confusion between 8 the clearly canadian and clearly kombucha products and marks. see pom wonderful 9 llc , 775 f.3d at 1125. because a reasonable jury could find a likelihood of confusion as 10 to the origin of the clearly kombucha beverages, summary judgment on clearly food’s 11 trademark infringement claim is inappropriate. see mattel , 353 f.3d at 806-07; 12 entrepreneur media , 279 f.3d at 1141. 13 f. dilution 14 “dilution” refers to the “whittling away of the value of a trademark” when the 15 mark is used to identify different products. mattel, inc. v. mca records, inc. , 296 f.3d 16 894, 903 (9th cir. 2002). “a plaintiff seeking relief under federal anti-dilution law must 17 show that its mark is famous and distinctive, that defendant began using its mark in 18 commerce after plaintiff’s mark became famous and distinctive, and that defendant’s 19 mark is likely to dilute plaintiff’s mark.”9 levi strauss & co. v. abercrombie & fitch 20 trading co. , 633 f.3d 1158, 1169 (9th cir. 2011) (quoting visa int’l serv. ass’n v. jsl 21 9 there are two types of dilution: dilution by blurring and dilution by tarnishment. 15 u.s.c. 22 § 1125(c)(2)(b), (c); m attel, inc. , 296 f.3d at 903. 1 corp. , 610 f.3d 1088, 1089-90 (9th cir. 2010)). top shelf challenges only one element 2 of this test; specifically, top shelf contends that clearly food cannot show that the 3 clearly canadian mark is famous. (mot. at 18.) 4 “[a] mark is famous if it is widely recognized by the general consuming public of 5 the united states as a designation of source of the goods or services of the mark’s 6 owner.” 15 u.s.c. § 1125(c)(2)(a). to determine the degree of fame a mark retains, 7 courts look to the following four non-exclusive factors: 8 (i) the duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties. 9 (ii) the amount, volume, and geographic extent of sales of goods or 10 services offered under the mark. 11 (iii) the extent of actual recognition of the mark. 12 (iv) whether the mark was registered under the act of march 3, 1881, or the act of february 20, 1905, or on the principal register. 13 id. ; see also jada toys, inc. v. mattel, inc. , 518 f.3d 628, 635 (9th cir. 2008). 14 protection from dilution is a cause of action “reserved for a select class of marks—those 15 marks with such powerful consumer associations that even non-competing uses can 16 impinge on their value.” nissan motor co. v. nissan computer corp. , 378 f.3d 1002, 17 1011 (9th cir. 2004). for this reason, protection from dilution extends “only to those 18 whose mark is a ‘household name.’” id. 19 top shelf puts forth the following evidence showing that clearly food cannot 20 prove that the clearly canadian mark was famous as of early 2011, the date the clearly 21 kombucha products were launched. ( see mot. at 18-19; cargle decl. ¶ 14.) a 22 1 consulting group’s 2007 report on the clearly canadian trademark showed that only 2 34 % of the survey respondents who had consumed flavored soda or water within the last 3 month (and only 22% of the survey respondents overall) were aware of the clearly 4 canadian brand. ( see 2007 survey at 4-5, 10, 22.) this recognition rate was much lower 5 than the rate for competitors such as aquafina (94%), schweppes (77%), perrier (76%), 6 vitaminwater (61%), and pellegrino (43%). ( id. ) the report concluded that, in 2007, 7 the brand was “in a good starting place for rebuilding.” ( id. ) 8 sales of the clearly canadian product, however, had declined steadily between 9 1992 and 2007, and between 2007 and 2009 they dropped to a minimal amount. ( see 10 2014 investor pres. at 14; trustee’s rep. at 3 (stating that after 2005, cc beverage 11 “struggled in the competitive beverage market” despite “attempts . . . to revive the 12 business”).) in 2009, production of clearly canadian beverages ceased. (6/3/14 khan 13 email; 12/22/11 khan email.) by 2010, cc beverage “no longer ha[d] meaningful 14 operations.” (trustee’s rep. at 3; 2012 bus. plan at 5 (“the brand . . . entered dormancy 15 in late 2010 . . . .”) cybersquatters had taken over the clearly canadian website 16 domains. (ledden decl. ex. 10.) negligible sales of clearly canadian were occurring 17 on the secondary market. ( see bogen decl. ¶ 5, attachs. a, b, c; colley dep. at 23:6- 18 15; 24:19-25:3.) 19 clearly food’s responsive briefing does not mention its trademark dilution claim, 20 or otherwise attempt to rebut top shelf’s contention that the clearly canadian mark was 21 not famous in early 2011. ( see resp.) the court will not sift through the record 22 searching for evidence on clearly food’s behalf. see united states v. dunkel , 927 f.2d 1 955, 956 (7th cir. 1991) (“judges are not like pigs, hunting for truffles buried in briefs.”) 2 the court finds that the evidence clearly food put forth to support its trademark 3 infringement claim is insufficient to raise a question of fact regarding the dilution claim. 4 specifically, the facts that clearly canadian’s social media page has received 5 35,000 “likes” and an internet comedy show recently discussed clearly canadian 6 beverages for four minutes, see supra § iii.e, are insufficient to show that clearly 7 canadian was a “household name” to consumers in the united states in early 2011. that 8 evidence does not remedy clearly food’s failure to point the court to any affirmative 9 evidence showing the “duration

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Whois Information

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Domain Name: DAVIDLILENFELD.COM
Registry Domain ID: 1571028376_DOMAIN_COM-VRSN
Registrar WHOIS Server: whois.godaddy.com
Registrar URL: http://www.godaddy.com
Updated Date: 2017-10-03T15:54:02Z
Creation Date: 2009-10-02T15:53:26Z
Registry Expiry Date: 2019-10-02T15:53:26Z
Registrar: GoDaddy.com, LLC
Registrar IANA ID: 146
Registrar Abuse Contact Email: [email protected]
Registrar Abuse Contact Phone: 480-624-2505
Domain Status: clientDeleteProhibited https://icann.org/epp#clientDeleteProhibited
Domain Status: clientRenewProhibited https://icann.org/epp#clientRenewProhibited
Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited
Domain Status: clientUpdateProhibited https://icann.org/epp#clientUpdateProhibited
Name Server: NS29.DOMAINCONTROL.COM
Name Server: NS30.DOMAINCONTROL.COM
DNSSEC: unsigned
URL of the ICANN Whois Inaccuracy Complaint Form: https://www.icann.org/wicf/
>>> Last update of whois database: 2018-10-14T00:06:59Z <<<

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  REGISTRAR GoDaddy.com, LLC

SERVERS

  SERVER com.whois-servers.net

  ARGS domain =davidlilenfeld.com

  PORT 43

  TYPE domain

DOMAIN

  NAME davidlilenfeld.com

  CHANGED 2017-10-03

  CREATED 2009-10-02

STATUS
clientDeleteProhibited https://icann.org/epp#clientDeleteProhibited
clientRenewProhibited https://icann.org/epp#clientRenewProhibited
clientTransferProhibited https://icann.org/epp#clientTransferProhibited
clientUpdateProhibited https://icann.org/epp#clientUpdateProhibited

NSERVER

  NS29.DOMAINCONTROL.COM 216.69.185.15

  NS30.DOMAINCONTROL.COM 173.201.72.15

  REGISTERED yes

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