PB Brands, LLC v. Patel Shah Indian Grocery ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-10-2009
PB Brands LLC v. Patel Shah Indian Gr
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3205
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3205
PB BRANDS, LLC,
d/b/a PATEL BROTHERS
v.
PATEL SHAH INDIAN GROCERY
PB Brands, LLC,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-07-cv-04394)
District Judge: Honorable Joseph A. Greenaway
Argued May 22, 2009
____________
Before: RENDELL, STAPLETON, and ALARCÓN*, Circuit Judges
(Filed: June 10, 2009)
____________
*
Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for
the Ninth Circuit, sitting by designation.
Vanessa R. Elliot [ARGUED]
Beattie Padovano, LLC
50 Chestnut Ridge Road
Montvale, NJ 07645
Counsel for Appellee
Charles Quinn [ARGUED]
Graham Curtin, P.A.
P.O. Box 1991
Morristown, NJ 07962-1991
Counsel for Appellant
OPINION OF THE COURT
ALARCÓN, Circuit Judge.
PB Brands, LLC (“PB Brands”) appeals the District Court’s order denying its
motion for a preliminary injunction. PB Brands sought to enjoin Patel Shah Indian
Groceries (“PSIG”)1 from using the name Patel, or any similar name, in commerce. The
District Court held that PB Brands failed to establish that a likelihood of confusion
existed between PB Brands’ service marks and PSIG’s business name. We affirm.
I
Established in 1974, PB Brands is a family business that today claims to be “the
1
In the complaint, PB Brands named PSIG as “Patel Shah Indian Grocery.” This
is also the name used and analyzed by the District Court. The record shows, however,
that the last word of PSIG’s business name is “Groceries,” not “Grocery.”
2
largest grocer of Indian food products in the United States.” PB Brands owns a chain of
thirty-two Indian grocery stores in sixteen states that are operated by either PB Brands or
a PB Brands’ licensee. The stores operate under the names Patel Brothers, Patel’s Cash
& Carry, Patel Brothers Cash & Carry, or Patel Foods. PB Brands also owns the three
service mark registrations—Patel Brothers (registered January 17, 1995), Patel’s Cash &
Carry (registered March 11, 1997), and Patel Brothers Cash & Carry (registered May 24,
2005).
In 2007, Bhavesh Patel—who is not affiliated with PB Brands—planned to open
an Indian grocery store in Fairfield, New Jersey which is located in Essex County.
Bhavesh Patel named his store Patel Shah Indian Groceries. “Patel Shah” is a
combination of Bhavesh Patel’s surname and his wife’s maiden name, Shah. Before
PSIG held its grand opening sale, PB Brands became aware of the name of PSIG’s store.2
PB Brands wrote to PSIG, informed it of PB Brands’ registered marks, and demanded
that PSIG remove the name Patel from its store name and advertising. PB Brands
claimed that PSIG was infringing on PB Brands’ federal trademarks and service marks
and that PB Brands would initiate legal action if PSIG did not change its business name.
PSIG chose not to change its name and held a grand opening of its store on September 13,
2
It is unclear how PB Brands became aware of PSIG. PSIG contends that it
placed a wholesale order with PB Brands and the purchase order identified PSIG. At oral
argument, however, PB Brands stated that it engaged in retail, and not wholesale sales.
3
2007. PB Brands filed suit the same day alleging trademark infringement and unfair
competition, violations of Lanham Act, 15 U.S.C. §§ 1114,3 1125.4
3
The relevant portion of this statute provides:
(1) Any person who shall, without the consent of the
registrant --
(a) use in commerce any reproduction, counterfeit, copy, or
colorable imitation of a registered mark in connection with
the sale, offering for sale, distribution, or advertising of any
goods or services on or in connection with which such use is
likely to cause confusion, or to cause mistake, or to deceive;
or
(b) reproduce, counterfeit, copy, or colorably imitate a
registered mark and apply such reproduction, counterfeit,
copy, or colorable imitation to labels, signs, prints, packages,
wrappers, receptacles or advertisements intended to be used in
commerce upon or in connection with the sale, offering for
sale, distribution, or advertising of goods or services on or in
connection with which such use is likely to cause confusion,
or to cause mistake, or to deceive,
shall be liable in a civil action by the registrant for the
remedies hereinafter provided. Under subsection (b) hereof,
the registrant shall not be entitled to recover profits or
damages unless the acts have been committed with knowledge
that such imitation is intended to be used to cause confusion,
or to cause mistake, or to deceive.
15 U.S.C. § 1114(1) (2005).
4
The relevant portion of this statute provides:
(continued...)
4
Two weeks later, on September 28, 2007, PB Brands filed a motion for a
preliminary injunction seeking to enjoin PSIG from its alleged service mark infringement
and unfair competition. PSIG opposed this motion on October 16, 2007. PB Brands filed
a reply on October 25, 2007. On November 29, 2007, the District Court held a hearing on
the motion. The District Court denied the motion on June 27, 2008. PB Brands filed a
timely appeal.
The District Court had original jurisdiction under 15 U.S.C. § 1121(a) and 28
4
(...continued)
(a) Civil action
(1) Any person who, on or in connection with any goods or
services, . . . uses in commerce any word, term, name,
symbol, or device, or any combination thereof, or any false
designation of origin, false or misleading description of fact,
or false or misleading representation of fact, which--
(A) is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of such
person with another person, or as to the origin, sponsorship,
or approval of his or her goods, services, or commercial
activities by another person, or
(B) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of his or
her or another person's goods, services, or commercial
activities, shall be liable in a civil action by any person who
believes that he or she is or is likely to be damaged by such
act.
15 U.S.C. § 1125(a) (2006).
5
U.S.C. § 1338. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).
II
PB Brands contends that the District Court improperly applied and weighted the
factors set forth in Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 462 (3d Cir. 1983), to
reach its conclusion that PB Brands’ marks and PSIG’s business name were not
confusingly similar. We review “the denial of a preliminary injunction for ‘an abuse of
discretion, an error of law, or a clear mistake in the consideration of proof.’” Kos
Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (citing AT&T v. Winback
& Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)).
III
“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374
(2008). The first element—whether PB Brands established a likelihood of success on the
merits—is the issue before this Court.
A plaintiff can successfully establish a trademark claim if it proves:
Generally, to win a trademark claim, a plaintiff must establish
that (1) the marks are valid and legally protectable; (2) the
marks are owned by the plaintiff; and (3) the defendant’s use
6
of the marks to identify goods or services is likely to create
confusion concerning the origin of the goods or services.
Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990).
“If the mark at issue is federally registered and has become incontestible, then
validity, legal protectability, and ownership are proved.” Commerce Nat’l Ins. Servs.,
Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 438 (3d Cir. 2000). “A trademark
becomes incontestable after the owner files affidavits stating that the mark has been
registered, that it has been in continuous use for five consecutive years, and that there is
no pending proceeding and there has been no adverse decision concerning the registrant’s
ownership or right to registration.” Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30
F.3d 466, 472 n.7 (3d Cir. 1994). PB Brands submitted an affidavit declaring federal
registration and showing incontestability of the service marks “Patel Brothers” and
“Patel’s Cash & Carry.” Therefore, with respect to those marks, PB Brands has
demonstrated validity, legal protectability, and ownership. Those requirements are
undisputed, and thus the first two elements of trademark infringement are satisfied.
Because the first two elements are satisfied, we must decide whether PB Brands
demonstrated that there is a likelihood of confusion between its marks and PSIG’s
business name in order to succeed on the merits of its request for a preliminary injunction.
“Once a trademark owner demonstrates likelihood of confusion, it is entitled to injunctive
7
relief.” Lapp, 721 F.2d at 462. Likelihood of confusion exists when “consumers viewing
the mark would probably assume the product or service it represents is associated with the
source of a different product or service identified by a similar mark.” Scott Paper Co. v.
Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1229 (3d Cir. 1978). This is evaluated “from
the perspective of ordinary consumers, not from the perspective of people in the trade.”
Fisons, 30 F.3d at 476. This Court considers ten factors to determine whether a
likelihood of confusion exists:
(1) the degree of similarity between the owner’s mark and the
alleged infringing mark; (2) the strength of the owner’s mark;
(3) the price of the goods and other factors indicative of the
care and attention expected of consumers when making a
purchase; (4) the length of time the defendant has used the
mark without evidence of actual confusion arising; (5) the
intent of the defendant in adopting the mark; (6) the evidence
of actual confusion; (7) whether the goods, though not
competing, are marketed through the same channels of trade
and advertised through the same media; (8) the extent to
which the targets of the parties’ sales efforts are the same; (9)
the relationship of the goods in the minds of consumers
because of the similarity of function; (10) other facts
suggesting that the consuming public might expect the prior
owner to manufacture a product in the defendant’s market, or
that he is likely to expand into that market.
Lapp, 721 F.2d at 463 (citing Scott, 589 F.2d at 1229).
Although no fact is “determinative . . . and each factor must be weighed and
balanced against one against the other,” Checkpoint Sys., Inc. v. Check Point Software
8
Techs., Inc., 269 F.3d 270, 280 (3d Cir. 2001), when the marks directly compete “[t]he
single most important factor in determining likelihood of confusion is mark similarity.” A
& H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 216 (3d Cir. 2000).
In this appeal, PB Brands challenges the District Court’s conclusions of the first, second,
third, seventh, eighth, ninth, and tenth Lapp factors.
The record shows that the District Court correctly analyzed the fourth, fifth, and
sixth factors. No evidence supported either party with regard to the fourth or sixth
factors—the length of time PSIG had used the mark and evidence of customer’s actual
confusion—as this action was filed the day PSIG held its grand opening sale. Thus, these
factors were neutral. The fifth factor, intent, weighed in favor of PSIG. PSIG chose the
name based on a combination of the owner and his wife’s surnames, and PB Brands
presented no evidence that PSIG intended to confuse or deceive the public. See
Checkpoint, 269 F.3d at 286 (noting that “a party’s intentional use of another party’s
mark to cause confusion” weighs in favor of finding likelihood of confusion).
A
The first Lapp factor is the degree of similarity between PB Brands’ marks and
PSIG’s allegedly infringing mark. This is a comparison between “Patel Brothers” or
“Patel Cash & Carry” and “Patel Shah Indian Groceries.”
“[T]the overarching question is whether the marks, ‘viewed in their entirety,’ are
9
confusingly similar.” Kos, 369 F.3d at 714 (citing A & H, 237 F.3d at 216). To
determine the similarity of the mark, a court must decide “‘whether the labels create the
same overall impression when viewed separately.’” Fisons, 30 F.3d at 477-78 (citations
omitted). To make this determination, courts “compare the appearance, sound and
meaning of the marks.” Checkpoint, 269 F.3d at 281. Additionally, a court may consider
the linguistic similarities of words in its evaluation of a trademark. Kos, 369 F.3d at 713
(comparing Advicor and Altocor, “seven-letter three syllable words that begin and end
with the same letters and the same sounds”).
In A & H, for example, this Court approved the district court’s analysis of the sight
and sound of two marks. 237 F.3d at 217-18. It analyzed the similarity between the
plaintiff’s mark MIRACLESUIT and the defendant-competitor’s mark THE MIRACLE
BRA. Id. at 206. The district court “noted that although they share the term MIRACLE,
there are different numbers of syllables, and the last syllable of each is different.
Moreover, Miraclesuit bleeds two words together while The Miracle Bra consists of three
discrete words. In short, the District Court concluded that the two marks sound different.”
Id. at 217. This Court also approved the court’s analysis of the look and meaning of the
marks, including the consideration of the generic words “the” and “bra” and “suit.” Id. at
217-18.
Likewise, here, the District Court considered the marks in their entirety and
10
correctly concluded that the first factor favored PSIG because the marks did not look or
sound alike. See PB Brands, LLC v. Patel Shah Indian Grocery, No. 07-4394, 2008 WL
2622846, at *4-6 (D.N.J. June 27, 2008). In this case, like A & H, the non-common
words distinguish the marks. The names Patel Brothers, Patel Cash & Carry, and Patel
Shah Indian Groceries differ in sight, sound, and length. Moreover, each name contains a
different number of words and syllables, and all three names end with different sounds.
Further, the strongest sound in Patel Brothers is “Brothers” distinguishing it from Patel
Shah. Additionally, the word “Brothers” indicates a fraternal, sibling relationship. The
name Patel Shah Indian Groceries is gender neutral and connotes different antecedents.
Finally, each name differs in the generic terms it uses—“Brothers,” “Cash & Carry,” and
“Indian Groceries.” Accordingly, the District Court did not clearly err in finding that,
when considered in their entirety, the sight and sound of the marks differed and that the
marks were neither confusingly similar nor likely to be confused in the mind of a roving
consumer. Thus, this most important factor weighs in PSIG’s favor.5
5
While we hold that the District Court correctly found the marks dissimilar in
rejecting the motion for a preliminary injunction, we also conclude, however, that the
District Court improperly relied on two forms of evidence in conducting its analysis of
the first factor. First, because “Patel” is the second most common Indian surname in
India, the District Court reasoned that the frequent use of the name would cause
consumers to distinguish the marks. PB Brands, 2008 WL 2622846, at *4-5. The
District Court should have considered the commonality of names in its analysis of the
strength of the mark—the second Lapp factor—not the similarity of the mark. A & H,
(continued...)
11
B
The next factor is the strength of the PB Brands’ marks. The strength of an
owner’s mark is “determined by (1) the distinctiveness or conceptual strength of the mark
and (2) its commercial strength or marketplace recognition.” Checkpoint, 269 F.3d at
282. The District Court calculated this factor as neutral by reasoning that while PB
Brands’ marks were not distinctive, its advertising and length of business operations
resulted in market strength.
“Although the wide use of a term within the market at issue is more probative than
the wide use of a term in other markets, the extensive use of the term in other markets
may also have a weakening effect on the strength of the mark.” A & H, 237 F.3d at 223.
Moreover, “as a general rule, widespread use of even a distinctive mark may weaken the
mark.” Citizens Fin. Group, Inc. v. Citizens Nat’l Bank, 383 F.3d 110, 123 (3d Cir.
2004).
5
(...continued)
237 F.3d at 223 (“Although the wide use of a term within the market at issue is more
probative than the wide use of a term in other markets, the extensive use of the term in
other markets may also have a weakening effect on the strength of the mark.”) (citation
omitted). Second, the District Court considered a disclaimer in PSIG’s advertising that
read “[PSIG] is not affiliated with Patel Brothers.” PB Brands, 2008 WL 2622846, at *5.
PSIG’s counsel introduced the disclaimer for the first time at oral argument. PB Brands
did not have an opportunity to review the disclaimer prior to the hearing or present any
argument regarding its effect. Accordingly, the District Court erred in considering the
disclaimer in its evaluation of the Lapp factors.
12
The District Court correctly considered that well over 100 businesses in New
Jersey use the surname Patel as the first name of their business. This fact weakens PB
Brands’ claim that its mark is distinctive. As the District Court explained, the prevalence
of the use of the term Patel in business names necessitates that “consumers . . . exercise
care and look to the remaining words in the business name in making purchasing
decisions.” PB Brands, 2008 WL 2622846, at *7; see Triumph Hosiery Mills, Inc. v.
Triumph Int’l Corp., 308 F.2d 196, 199 n.2 (2d Cir. 1962) (“The mark ‘Triumph’ is a
so-called weak mark, i.e. it has been used many times to identify many types of products
and services.”). Furthermore, the evidence shows that Patel is the second most common
Indian surname. This fact supports the District Court’s determination that the second
Lapp factor does not fall in favor of PB Brands. Scott, 589 F.2d at 1231 (“Selection of a
mark with a common surname naturally entails a risk of some uncertainty and the law will
not assure absolute protection.”).
The District Court next weighed the marks’ weakness against the commercial
strength or marketplace recognition of PB Brands’ marks. “Although evidence of money
spent does not automatically translate into consumer recognition, it is clearly relevant,
and hence the District Court’s methodology and conclusion does not appear to be in error
or to involve a misapplication of the law.” A & H, 237 F.3d at 224. Likewise, here, the
District Court considered that PB Brands advertises on a national and local basis,
13
spending approximately $50,000 per month and additional undisclosed amounts by
individual stores in local markets.
The District Court properly balanced the countervailing considerations—the
frequent use of the Patel name as a business identifier and PB Brands’ expenditures on
advertising—to reach the conclusion that the second factor was neutral.
C
We next consider the “price of the goods and other factors indicative of the care
and attention expected of consumers when making a purchase.” Lapp, 721 F.2d at 463.
“When consumers exercise heightened care in evaluating the relevant products before
making purchasing decisions, courts have found there is not a strong likelihood of
confusion.” Checkpoint, 269 F.3d at 284. Thus, “[t]he greater the care and attention, the
less the likelihood of confusion.” Fisons, 30 F.3d at 476 n.12. “Inexpensive goods
require consumers to exercise less care in their selection than expensive ones. The more
important the use of the product, the more care that must be exercised in its selection.”
Versa Prods. Co. v. Bifold Co. (Mfg.), 50 F.3d 189, 204 (3d Cir. 1995).
PB Brands unsuccessfully argued to the District Court that customers exercised a
low degree of care in selecting an Indian grocery store because the individual items sold
at the stores cost little. PB Brands, 2008 WL 2622846, at *8. In this appeal, PB Brands
14
makes the same argument.6 The District Court correctly determined that this factor was
neutral because “[n]either party provided sufficient evidence to elucidate” the degree of
care consumers spend on choosing an Indian grocery store.7 Id. Given the lack of
evidence presented to the District Court, we agree that this factor could not weigh in favor
of either PB Brands or PSIG.
D
Next, we consider whether PB Brands’ and PSIG’s goods are marketed through
the same channels of trade and advertised through the same media. “Courts have
recognized that ‘the greater the similarity in advertising and marketing campaigns, the
6
PB Brands’ argument fails to address the question regarding the degree of care
that consumers exercise in choosing where to shop. Instead, PB Brands addresses the
degree of care consumers use in purchasing individual items after they have chosen where
to shop. See, e.g., 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair
Competition § 23:95 (4th ed. 2003) (“[p]urchasers of relatively inexpensive goods such
as ordinary grocery store foods are held to a lesser standard of purchasing care.” ); Gray
v. Meijer, Inc., 295 F.3d 641, 649 (6th Cir. 2002) (snack foods); Starbucks Coffee Co. v.
Marshall S. Ruben, 78 U.S.P.Q.2d 1741, 1752 (T.T.A.B. 2006) (coffee); Specialty
Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 672 (Fed. Cir. 1984) (tea);
In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 1567 (Fed. Cir. 1984) (bread
and cheese).
7
We agree with PB Brands that the District Court erred in finding that
“households in the New York metropolitan area spend[] 13.5% of [their] income on
groceries.” PB Brands, 2008 WL 2622846, at *8. The evidence shows that households
actually spend only 7.4% of their income on groceries and spend the remaining 6.1% on
food prepared away from home, such as at restaurants, for carry out, etc. Nevertheless,
the error was harmless because the court did not rely on this evidence to reach its
conclusion that factor three was neutral. See id.
15
greater the likelihood of confusion.’” Checkpoint, 269 F.3d at 288-89 (citing Acxiom
Corp. v. Axiom, Inc., 27 F. Supp. 2d 478, 502 (D. Del. 1998)). “This is a fact intensive
inquiry” that requires courts to “examine the trade exhibitions, publications and other
media the parties use in marketing their products as well as the manner in which the
parties use their sales force to sell their products to consumers.” Id.
The evidence shows that PB Brands advertises nationally using various forms of
media, including television, radio, newspapers, magazines, and trade publications. PB
Brands, 2008 WL 2622846, at *10. In addition, PB Brands prints flyers, brochures, and
calendars. Id. Conversely, PSIG advertises to the local Fairfield, New Jersey community
solely through the use of flyers. Id. The District Court correctly considered this
evidence. It did not abuse its discretion by concluding that PB Brands and PSIG did not
market their goods through he same channels of trade or advertise in the same media.
E
The District Court held that factor eight, the targets of the parties’ sales efforts, fell
in PB Brands’ favor because both parties target the same group of consumers and, though
PB Brands did not have stores in Essex County, consumers could be exposed to its
advertising. “[W]hen parties target their sales efforts to the same consumers, there is a
stronger likelihood of confusion.” Checkpoint, 269 F.3d at 289 (citing Lapp, 721 F.2d at
463-64). Although this factor should have weighed entirely in PB Brands’ favor, the
16
District Court discounted its weight for two reasons. First, the court reasoned that the
sight and sound of the marks differed. PB Brands, 2008 WL 2622846, at *11. Second, it
considered PSIG’s use of the disclaimer. Id. As explained above, the District Court
should not have considered PSIG’s disclaimer. Any error caused by this improper
consideration, however, was harmless. Even if factor eight weighed entirely in favor of
PB Brands, the overall balance of the Lapp factors would not change.
F
PB Brands contends that although the District Court concluded factor nine fell in
its favor, the court should have given it more weight. PB Brands cites no authority for its
proposition that factor nine should be accorded a greater degree of weight than applied by
the District Court. The District Court analyzed “‘whether the goods are similar enough
that a consumer would assume they were offered by the same source.’” PB Brands, 2008
WL 2622846, at *11 (citing Checkpoint, 269 F.3d at 386). The court concluded, “[PB
Brands] argues that the use of the marks is identical; namely, the marks are being used to
market Indian groceries. This Court agrees. . . . This factor weighs in favor of [PB
Brands.]” Id. The degree of weight given to this factor by the District Court was not
clearly erroneous.
G
17
The last factor asks whether “other facts suggesting that the consuming public
might expect the prior owner to manufacture a product in the defendant’s market, or that
he is likely to expand into that market.” Lapp, 721 F.2d at 463. As explained in
Checkpoint:
When it appears extremely likely . . . that the trademark owner
will soon enter the defendant’s field, this . . . factor weighs
heavily in favor of injunctive relief. Under this factor we look
not only to evidence that a plaintiff has actually moved into
the defendant’s market, but also to other facts suggesting that
the consuming public might expect the prior owner to
manufacture a product in the defendant’s market, or that it is
likely to expand into that market.
269 F.3d at 290 (quoting Lapp, 721 F.2d at 463) (internal quotations and citation omitted)
(emphasis added).
The District Court held that this factor weighed in favor of PSIG because PB
Brands did not operate any stores in Essex County, where PSIG is located, and because it
did not present any evidence that it intended to expand into Essex County. PB Brands
claims that the specific geographical area is irrelevant because its advertising reaches the
regional area. This argument does not challenge the basis for the District Court’s
decision: no evidence exists indicating that PB Brands plans to expand into PSIG’s
market area. Accordingly, the District Court did not abuse its discretion by weighing this
factor in PSIG’s favor.
18
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the District Court.
19