finding likelihood of confusion “exists when the consumers viewing the mark would probably assume that the product or service it represents is associated with the source of a different product or service identified by a similar mark”
How later courts described this case
- finding likelihood of confusion “exists when the consumers viewing the mark would probably assume that the product or service it represents is associated with the source of a different product or service identified by a similar mark”
- stating that the appropriate inquiry is whether the company conducted an adequate name search for other companies marketing similar goods and whether it followed through with an investigation if such companies were found
- finding that plaintiffs peat moss and defendant’s fertilizer were used for the same common purpose of improving soil, and thus that a consumer might reasonably believe that both were offered by the same company
- holding district court erred in “failing] to count the similarities in channels of trade and target audience” for plaintiff due to district court’s view that other Lapp factors weighed against plaintiff
Written by the judges who cited it.
The opinion
GARTH, Circuit Judge,
concurring in part and dissenting in part:
The majority opinion has convincingly analyzed this appeal under Scott Paper Co. v. *482 Scott’s Liquid Gold, Inc., 589 F.2d 1225 (3d Cir.1978) and Interpace Corp. v. Lapp, 721 F.2d 460 (3d Cir.1983). While I am in wholehearted agreement with the majority that we must reverse the district court’s ruling on the merits, 1 1 can see no purpose in remanding for retrial of Fisons’ Lanham Act claims when it is so evident that the marks at issue here are confusingly similar.
Accordingly, I would reverse the decision of the district court, enter judgment in favor of Fisons on its Lanham Act claims, and remand with instructions that the district court fashion the appropriate relief, and consider Fisons’ state claims.
I
The majority’s able opinion not only details the analysis required in Lanham Act eases, but also applies that analysis to the record before us on appeal. Typically, having found error in the district court’s application of the Lapp analysis, we would reverse and remand to the district court with instructions to take actions consistent with the foregoing opinion.
Nevertheless, I see little need to do so in the present ease. Judge Scirica’s majority opinion already has performed the Scott Paper/Lapp analysis and the requisite balancing. That analysis can lead to only one conclusion: that the district court erred in ruling for Vigoro on the merits of Fisons’ Lanham Act claims.
Although we have held that a district court’s finding of similarity does not necessarily compel a conclusion that two marks are confusingly similar, Merchant & Evans, Inc. v. Roosevelt Building Products Co., Inc., 963 F.2d 628, 636 (3d Cir.1992); Country Floors, Inc. v. Gepner, 930 F.2d 1056, 1065 (3d Cir.1991), we also have held that “[p]er-haps the most important of [the] factors is the first on the Scott Paper list: the degree of similarity between the two marks.” Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 293 (3d Cir.1991). In Opticians Ass’n of Am. v. Independent Opticians of Am., 920 F.2d 187, 195 (3d Cir.1990), we held that, “if the overall impression created by the marks is essentially the same, ‘it is very probable that the marks are confusingly similar.’” (Citation omitted).
As the majority recognizes, in analyzing the appearance of the products at issue here, the district court failed to focus on their overall impression. Maj.Op. at 477. One need only look at the marks themselves to conclude that they are so similar that one can only wonder how an ordinary consumer of the goods could be anything but confused by the parties’ indistinguishable use of the FAIRWAY mark. The packaging of the products, the prominent use of the word “Fairway,” and the inclusion of a triangular flag rising from a tee centered on a golfing green, are, for all intents and purposes, virtually identical as to both products. Under Ford Motor Co. and Opticians Association of America, this similarity all but creates a presumption of the requisite likelihood of confusion.
Consequently, I see no point in ordering the district court to revisit this trademark controversy in its entirety, and compelling the parties to spend additional time, money, and efforts on re-litigating the Scott Paper/Lapp factors, when the conclusion to which the district court must come has been outlined so effectively in the majority’s opinion.
II
Accordingly, I would reverse the district court’s order and remand with the direction that the district court enter judgment for Fisons on its Lanham Act claims. On remand, then, the district court would have to do no more than fashion the appropriate relief (i.e., frame an injunction, assess damages, impose or not impose attorneys’ fees, costs, interest, etc.) and resolve Fisons’ state law claims, which the district court failed to address adequately in its initial decision. Because the majority would dispose of this appeal in a manner which I believe is wasteful of judicial resources, I dissent from so much of the majority’s opinion as would re *483 mand to the district court for retrial of Fi-sons’ Lanham Act claims.
. I also agree with the majority that we must affirm the district court’s denial of Vigoro's request for attorneys' fees inasmuch as Vigoro is no longer the prevailing party under 15 U.S.C. § 1117 .