Morissey, Dublin, Ohio, for Plaintiff. Plaintiff alleges trademark infringement in violation of 15 U. This matter is before the Court on the parties' cross-motions for summary judgment Does. For the reasons stated below, the Court Denies plaintiff's summary judgment motion and Grants defendant's summary judgment motion. Plaintiff also operates a substantial mail order business under the same names with catalog sales of new and used musical instruments to customers in several states, including Ohio.
In its complaint, plaintiff alleged that the Big daddys music store by defendant of mudic name "Big Daddy's Family Music Center" constitutes trademark infringement and false designation under the Lanham Act. The District Court also stated, however, that the likely degree of purchaser care "significantly" decreases the likelihood of consumer confusion. See, e. After a car accident that destroyed most of their band gear, the group was looking for an endorsement with a local music store. Cases Big daddys music store fit into one of three categories regarding the relatedness of the goods and services of the parties. Tennessee Sales Co. All the above considerations dictate that material issues of fact remain regarding the degree of similarity between the parties' Lisa donahue nude channels. Based on the above, the Court Grants defendant's summary judgment motion Doc.
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As if the vast array of otherworldly creatures were not enough to keep the melodrama moving along at a good clip, the show also featured time travel! The first example of confusion cited by plaintiff, however, is Amateur equipment radio table legitimate concern. An "arbitrary" mark has " 'a significance recognized in everyday life, but the thing Big daddys music store normally signifies is unrelated to the product or service to which the mark is attached,' Big daddys music store as CAMEL cigarettes or APPLE computers. Appalachian Log Homes, Inc. Overall, this factor neither increases nor decreases the likelihood of consumer confusion. Likelihood of Expansion of the Product Lines. Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact. First, if the parties compete directly by offering their goods or services, confusion is likely if the marks are sufficiently similar; second, if the goods or services are somewhat related but not competitive, the likelihood of confusion will turn on other factors; third, if the goods or services are totally unrelated, confusion is unlikely. See 15 U. Log in.
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Morissey, Dublin, Ohio, for Plaintiff. Plaintiff alleges trademark infringement in violation of 15 U. This matter is before the Court on the parties' cross-motions for summary judgment Does.
For the reasons stated below, the Court Denies plaintiff's summary judgment motion and Grants defendant's summary judgment motion. Plaintiff also operates a substantial mail order business under the same names with catalog sales of new and used musical instruments to customers in several states, including Ohio. Plaintiff has also been referred to as "Big Daddy" by the general public. Focusing on its "Daddy's Junky Mail," and hailing as "World's Largest Dealer of Used Musical Equipment," plaintiff has built a Grants for breast inhancment mail order business throughout the United States and advertises in most of the major music industry magazines.
Plaintiff has over 1, Ohio residents on its mailing list with Ohioans within a mile radius of defendant Big Daddy's Family Music Center. This success has prompted plaintiff to pursue expansion within the state and plaintiff has entered into preliminary negotiations to purchase a Columbus, Ohio based company engaged in retail musical instrument sales.
Defendant "Big Daddy's Family Music Center" is a sole proprietorship located in Delaware, Ohio, engaged in retail sales of new musical instruments since The name of the store can be traced to its owner Greg "Big Daddy" Houston.
Houston acquired the nickname at the Chicago Blues Festival and is indeed "big," standing six feet one inch tall and massing approximately pounds.
Nearly all of the 2, individuals on defendant's list reside in Delaware or contiguous counties. This sum went toward the expenses of direct mailings as well as local cable television and newspaper. Defendant gains further exposure through its support of various local philanthropic efforts. Plaintiff brought this action against defendant seeking damages and an injunction against further infringement of its registered trademarks.
Both parties have cross filed for summary judgment; plaintiff on the trade infringement claim and defendant on all four claims. Tennessee Sales Co. The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Liberty Lobby, Inc.
Summary judgment is appropriate, however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.
Celotex Corp. Zenith Radio Corp. The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v.
The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Moreover, "[t]he trial court no longer has Big daddys music store duty to search the entire record to establish that it is bereft of a genuine issue of material fact.
That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact. Plaintiff alleges that the defendant's use of the name "Big Daddy's Family Music Center" constitutes trademark infringement and unfair competition under the sections 32 and 43 a of the Lanham Act, 15 U.
The test for trademark infringement pursuant to 15 U. Thomas, F. Here's Johnny Portable Toilets, Inc. Plaintiff also alleges that defendant's use of the name "Big Daddy's Family Music Center" constitutes "false designation," an unfair business practice prohibited by Medical model flaws Lanham Act. Unfair business practices under the Lanham Act include false designations of origin and false or misleading descriptions or representations of fact.
See Chrysler Corp. Newfield Publications, Inc. Pursuing an action under the DTPA does not preclude a plaintiff from also bringing an action under the common law. Worthington Foods, Inc. Kellogg Co. Ohio Both Spokane waste dump resemble a federal claim of trademark infringement in that Linda blair blowjob vids require the same analysis given to determination of liability under 15 U.
See Mister Twister, Inc. JenEm Corp. Ohio ; see also Worthington Foods at addressing comparison between common law trade infringement and the Lanham Act ; Barrios v.
Thermal Instruments, Inc. A purely legal question, Esercizio v. Roberts, F. Home Marketing Specialists, Inc. Shoney's Inc. It is consumer confusion in market conditions and not within the confines of the courtroom which matters. In this vein, the Sixth Circuit has established a six part test which aims to assess likelihood of confusion in light of actual market conditions. These factors include:. Frisch's Restaurants, Inc. Elby's Big Boy, Inc.
Sleekcraft Boats, F. These factors are interrelated and merely serve as a guide to determine the likelihood of confusion. Homeowners, F. Moreover, the plaintiff need not address each and every factor in order to prevail.
Wynn Oil, F. This factor encompasses a "mark's distinctiveness and degree of recognition in the marketplace. In determining Penetration camera strength of a mark the Court must consider several elements including the mark's incontestability status, see Wynn Oil, F. See id.
A primary consideration for the Court is whether the United States Trademark Office has given incontestability status to the trademark at issue. Such status arises following submission Rc transmitters for model helicopters Big daddys music store registrant of proof of Big daddys music store use for five years following the date of registration.
Not only is an incontestable federal trademark conclusive evidence of the validity of the registered mark, see 15 U. Matsui Am. See pl. According to Wynn Oil, this mark carries a presumption of strength. Plaintiff's other four marks which utilize the Disc gears marine twin "Daddy's," however, having not reached incontestability status, see pl.
B, C, are not entitled to any presumption. Another method of assessing strength of the mark is by determining the mark's type. Trademarks fall within one of four types or categories. These categories include: 1 arbitrary or fanciful, Big daddys music store suggestive, 3 descriptive, and 4 generic. Burke-Parsons-Bowlby Corp. Appalachian Log Homes, Inc. These categories are not absolutely discrete, and the Court's task is to place the trademark somewhere within the spectrum.
See Worthington Foods, F. Fanciful marks, words or design which connotes the good or service alone, see Little Caesar Enters. Pizza Caesar, Inc. Plaintiff's stronger mark, "Daddy's Junky Music Stores" is an arbitrary mark. As plaintiff's "Daddy's Junky Music Stores" is arbitrary, Nice blow jobs videos must be considered relatively strong. Plaintiff's other three marks the "Daddy's" marks are arbitrary.
These marks stand by themselves to represent the provision of services. The "Daddy's" marks therefore must also be considered relatively strong. When considering the Big daddys music store of a mark, the Court must also consider the markets in which the mark has its greatest recognition and allegiance.
See Homeowners, F. This includes an analysis of regional strength, that is, exposure in geographical and product areas. Ameritech, Inc.
Technologies Corp. In this case, plaintiff has a smattering of customers, approximately 1, on its mailing list who live within the entire state of Ohio. Plaintiff operates all of its retail stores in the Northeast. Its exposure to this region comes purely through its mail order business. Plaintiff's marks, therefore, if entitled to a finding of strength, have their most recognition in the Northeast. Lack of a major presence in this state weighs against a finding of strength in this region.
Lastly, if there are numerous third-party registrations Big daddys music store the mark, the mark should be considered weaker.
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The District Court correctly explained that these claims mirror the previously discussed federal claim of trademark infringement by also requiring proof of a likelihood of confusion. Plaintiff holds three related U. Again, this factor neither increases nor decreases the likelihood of consumer confusion. If the parties in all other respects had similar marks, advertising, and trade dress, there would be some risk of consumer confusion. Plaintiff is foreclosed as a matter of law from proving a likelihood of confusion in light of the Court's above finding. Plaintiff also operates a substantial mail order business under the same names with catalog sales of new and used musical instruments to customers in several states, including Ohio. Defendant sells primarily new electronic instruments, but it also sells some used instruments and some traditional band instruments. We therefore apply an entirely de novo standard of review to this appeal, just as we would to any other grant of summary judgement. Zenith Radio Corp. Plaintiff complains that the record contains circumstantial evidence that defendant intentionally copied its marks.
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The name is a sobriquet for what it became, a haven for musicians, aspiring to pro. If you were Fred Bramante, a young Keene State College student, the genesis was a bandmate who told him of an incarcerated friend that owned a Hagstrom solid body guitar, which necessitated a quick sale to raise bail money. The year found Fred balancing his young family, a full-time teaching position and his fledgling musical retail business. Enter serendipity. Germination was firmly in place as more stores were added throughout the northeast.