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Hornady Manufacturing Company, Inc. v DoubleTap, Inc.

Case No. 13-4085 (C.A. 10, Mar. 19, 2014)

Plaintiff–Appellant Hornady Manufacturing Company, Inc., appeals from a district court order granting summary judgment to Defendant–Appellee DoubleTap, Inc., on Hornady’s trademark infringement claims. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.


Hornady was founded in 1949 by Joyce Hornady. Aplt. App. 1047. Since that time, Hornady has manufactured and sold firearm ammunition and related products. Id. It sells its products through brick-and-mortar retailers, its websites, and direct-to-consumer sales, including direct sales to law enforcement agencies. Id. at 1048-49.

Since 1997, Hornady has sold various products under the name “TAP,” short for “Tactical Application Police.” Id. at 1047, 1061. These products include the sub-brands TAP, TAP FPD, TAP URBAN, TAP PRECISION, TAP CQ, TAP BARRIER, BTHP TAP, and GMX TAP. Id. at 1047; see, e.g., id. at 1084. In 1999, Hornady acquired trademark registration for the nonstylized word mark, “TAP.” Id. at 1052; TAP, Registration No. 2,259,161. Hornady holds nonstylized word mark registrations for other TAP sub-brands. Aplt. App. 1054-58. In 2004, the TAP mark became statutorily incontestable under 15 U.S.C. § 1065. Id. at 924-25. Photographs in the record indicate that the packaging for Hornady’s products conspicuously features the TAP mark, both as a stand-alone mark and as incorporated within a shield resembling a police officer’s badge.


Judge(s): Paul Kelly
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Trademark
Circuit Court Judge(s)
William Holloway
Paul Kelly
Gregory Phillips

Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Brett Foster Holland & Hart LLP
Marcy Glenn Holland & Hart LLP
Mark Miller Holland & Hart LLP
Ginger Utley Holland & Hart LLP

Defendant Lawyer(s) Defendant Law Firm(s)
James Burton Kirton McConkie
Joshua Rupp Kirton McConkie
Justin Starr Kirton McConkie



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the similarity of the marks is the “first and most important factor.” king - 11 - “directly convey to the buyer the ingredients, qualities, or characteristics of the identifier, “mcnett’s.” id. at 75. court credited doubletap with this factor because consumers are not likely to confusion is especially undermined in this case by the sheer lack of similarity district court should have applied. water pik, inc. v. med-systems, inc., 726 products. id. it sells its products through brick-and-mortar retailers, its websites, barrier. it does not use it at the end of a compound word as doubletap does. questions asked.” water pik, 726 f.3d at 1144 (quoting vail assocs., inc. v. box,12 1065. id. at 924-25. photographs in the record indicate that the packaging for word—“doubletap”—presented in a blue oval and crowned with the of actual confusion evidence in this case: direct evidence in the form of telephone no. 13-4085 although secondary meaning is presumed, the fact that hornady’s mark kelly, circuit judge. of intent to copy may justify an inference of likelihood of confusion, we have of confusion between the tap and doubletap marks, addressing hornady’s certain product, the likelihood of confusion is reduced. id. at 1160. the district ways.11 failed to support a likelihood of confusion.” water pik, 726 f.3d at 1145. district court erred by considering differences created by the parties’ packaging. judgment may be granted if that evidence is “not significantly probative.” one or more of the makers had received permission or dissimilarity when analyzing the remaining factors. whether proceeding under § 32 or § 43(a) of the lanham act, “the central acronym’s meaning), “tap” means “to strike lightly.” webster’s 9th new coll. hornady additionally argues that, because its various tap sub-brands form - 7 - background such, they must be compared to doubletap for similarities (and differences) in ed. 2013). tap is thus suggestive and conceptually strong. the same conclusion. aplee. br. att. 10. - 20 - company, inc., a nebraska moved for summary judgment, arguing that they were entitled to judgment as a 1. direct evidence of actual confusion commercially strong. first, the tap mark has been on the market nearly 17 doubletap to be one of its tap marks. aplt. br. 33, 34-37. the only tie holding awarded summary judgment to doubletap. asked whether two or more of the products were made 4 mind, between the mark and a particular product. id. the district court hornady’s favor. id. the luth survey followed an identical strategy: evidence of events subsequent to its adoption. see id. at 1159. evidence of nor do any of hornady’s other tap marks bear aural similarity to f.3d at 1143. f.3d at 1143-44. even if the nonmovant produces some evidence, summary categories: suggestive terms “require the buyer to use thought, imagination, or f.3d at 1145.9 inc. v. heartspring, inc., 143 f.3d 550, 558 (10th cir. 1998). the factors are 1 - 16 - hornady manufacturing hornady argues that it was impermissible for the district court to refer to carry the distinctive “hornady®” house mark, further diminishing the degree of and the nonmovant cannot identify specific facts to the contrary. water pik, 726 - 17 - argues that the district court impermissibly “weighed evidence” in its analysis of 24-25. hornady appealed. most of its marks, e.g., tap urban, tap precision, tap cq, and tap - 13 - level of recognition in the marketplace. see king of the mountain, 185 f.3d at held that the intent factor favored doubletap, based on a lack of similarity in the 8 demanding that doubletap discontinue using the word “tap” on its products, company shown, (3) had permission from the first sufficient to credit hornady with this factor. aplt. br. 14; aplt. app. 622-23, gathered by luth research. aplt. br. 48, 52. we first address the direct evidence prefix—bthp tap and gmx tap—acronyms proceed the mark, not a readily a typewritten format, divorced from packaging.” 726 f.3d at 1145. this was of 2006, packaging for doubletap’s products displayed its mark as two separate products’ makers had a business affiliation; and whether minimis evidence. 726 f.3d at 1151. even assuming that the three instances b. doubletap’s intent doubletap was in the market constitute de minimis evidence of a likelihood of the lanham (trademark) act, 15 u.s.c. §§ 1051–1141n. “adopted” its mark. see water pik, 726 f.3d at 1157 (collecting cases). in rejected a comparison that presented the mark “differently from the way that it by the same company; whether two or more of the viewing the evidence in hornady’s favor, there is sufficient evidence to mark and as incorporated within a shield resembling a police officer’s badge. p. 56(a). the nonmoving party is entitled to reasonable inferences from the in the two instances where hornady uses “tap” as a suffix rather than a dictionary 1206 (1991). in contrast, the term “double tap” has a specialized 1084. in 1999, hornady acquired trademark registration for the nonstylized word none would have arisen otherwise. see water pik, 726 f.3d at 1148. this solely on name similarity.” heartsprings, 143 f.3d at 555. the court must deceive those consumers by copying hornady’s mark, it suggests that consumers survey presented the parties’ products one at a time, thus properly measuring dismissed this evidence as “de minimis,” and hornady argues that such a interrelated, and the “importance of any particular factor in a specific case can water pik, 726 f.3d at 1154.13 with these principles in mind, we compare the sight, sound, and meaning of comparing marks, “we do not independently examine each syllable of the marks no one of the six factors is dispositive, and “a genuine dispute of material hornady and its products is irrelevant to whether doubletap adopted its mark conceptually and commercially strong, and thus weighed the strength factor in channels, at several trade shows, and on its two websites. aplt. app. 1047-48. the degree of similarity between the competing marks; (2) the intent of the alleged factual issue regarding intent, namely, circumstantial evidence creating an for consumers who view “tap” in isolation (and who are unfamiliar with the apologetic info. & res., 527 f.3d 1045, 1055 (10th cir. 2008). we examine six and that the moving party is entitled to judgment as a matter of law. fed. r. civ. offered.” aplt. app. 133. the district court correctly weighed this factor in confusion does not dictate a finding of likelihood of confusion.” universal copy. aplee. br. att. 12. hornady argues that it did produce evidence creating a succession into a single target.” steve martini, double tap 317 (2005).7 public’s mind between the tap mark and its products. de minimis three affidavits alleging confusion, including two by the plaintiff’s hornady requests this exact analysis: “consequently, the manner in pleadings and record demonstrate the absence of a genuine issue of material fact strong in and of themselves. id. the district court held that hornady’s mark was which the parties display their marks differs greatly in color scheme and layout. rather than randomly or by accident, typically supports an inference of likelihood correctly weighed this factor in hornady’s favor. first, the court is not free to give dispositive weight to any one component lake city, utah; and marcy g. glenn of holland & hart, l.l.p., denver, f.3d 1136, 1143 (10th cir. 2013). summary judgment is appropriate if the “after tan post-tanning lotion” or “5 minute glue” do. see george & co. v. practices under utah law, and unjust enrichment. id. at 41-44. both parties be considered as a whole. id. in universal money centers, inc. v. at&t co., tap and doubletap. comparing tap and doubletap in visual appearance, they that, after hornady sent doubletap a cease-and-desist letter in january 2010, we review summary judgment de novo, applying the same standard that the district court’s assessment that a handful of instances over the ten years in which deceive purchasers as to the source of the product.” id. at 1158 (quoting confusion analysis.” water pik, 726 f.3d at 1150. “[e]vidence of some actual 2 doubletap, inc., a utah 2001) (dissimilarity in the marks’ appearance “negated an inference of intent to district court properly weighed this factor in doubletap’s favor. probative value and therefore irrelevant” because of methodological flaws. 726 the determination whether a mark is descriptive or suggestive is difficult, this supposed family together, however, is the word “tap.”3 plaintiff - appellant, granting all reasonable inferences in hornady’s favor, we agree that “tap” is v. viewing the evidence in hornady’s favor, we agree that tap is discussion establish that the parties produce similar products and market them in similar - 15 - with the senior user’s mark.” water pik, 726 f.3d at 1143. likelihood of matter of law on whether doubletap infringed on hornady’s tap mark. the tenth circuit but consider the mark as a whole as they are encountered by consumers in the and coloring schemes.” universal money centers, 22 f.3d at 1531. this includes as for the sound factor, the monosyllabic “tap” does not sound like the inquiry is the same: whether the junior user’s mark is likely to cause confusion hornady’s products conspicuously features the tap mark, both as a stand-alone because tap is conceptually and commercially strong, the district court reply br. 24. even on summary judgment, however, the district court may (internal quotation marks omitted). determination was inappropriate on summary judgment. id. at 49-52. tap is an acronym for “tactical application police”; it often displays its mark in 12 purchasers of ammunition; police are likely to seek out certain qualities in the the luth survey risked sowing confusion between doubletap and tap when that time, hornady has manufactured and sold firearm ammunition and related is statutorily incontestible does not resolve the commercial strength inquiry. see justin starr, (james t. burton and joshua s. rupp of kirton, mcconkie, with him (2) descriptive, (3) suggestive, (4) arbitrary, and (5) fanciful. water pik, 726 in water pik, however, we considered the infringement of the “nonstylized word second, in its comparison of the marks, the court is “not free to focus that she was confused when deciding between the parties’ products, constituted de doubletap was founded in 2002 by michael mcnett. id. at 618. command that marks be considered as a whole as they are encountered by four factors favor doubletap. the tilt of the scales does not determine the issue. each ways in which consumers encounter the tap mark in the marketplace. as whether hornady manufactured doubletap. aplt. br. 48. the district court packages were: (1) of the same company or owned by concluded that hornady’s advertising efforts established the commercial strength nora beverages, inc. v. perrier grp. of am., inc., 269 f.3d 114, 125 (2d cir. of the marks, such as a shared syllable. water pik, 726 f.3d at 1155. marks must anderson v. liberty lobby, inc., 477 u.s. 242, 249-50 (1986). similarity of the parties’ products and the manner in which the parties market nonstylized word mark registrations for other tap sub-brands. aplt. app. 1054- consumers and circumstantial evidence regarding: (1) the length and manner of 1090. similarities in the marks get “more weight than the differences.” id. in cited by hornady constitute some evidence of actual confusion, we agree with the fact will not exist if all relevant factors, properly analyzed and considered specific challenges to the district court’s analysis below. district court order granting summary judgment to defendant–appellee district court denied hornady’s motion and granted doubletap’s. aplee. br. att. - 21 - (2013), or this one, greg trapp, the doubletap (2004), or maybe this one, colorado, on the briefs), for plaintiff - appellant. 10 “we have consistently recognized, however, that isolated, anecdotal - 9 - ‘cleanse’ and ‘sense.’” 726 f.3d at 1156. in this case, the fact that both marks streetwise maps, inc. v. vandam, inc., 159 f.3d 739, 745 (2d cir. 1998)). together, . . . indicate consumers are not likely to be confused.” heartsprings, 726 f.3d at 1143. in this case, the district court correctly held that hornady’s as to meaning, the marks are not similar. hornady does not dispute that calls, a letter, and a post on hornady’s facebook page; and survey evidence no, or not sure. mark, “tap.” id. at 1052; tap, registration no. 2,259,161. hornady holds dollars advertising its tap products in numerous magazines, on two television remove “tap” from its website, and destroy any materials it created bearing 726 f.3d at 1151. strength has two components: conceptual strength, or the (d.c. no. 2:11-cv-00018-ts) 9 f.3d at 1152. only suggestive, arbitrary, and fanciful marks are considered depend on a variety of circumstances, including the force of another factor.” intending to copy the tap mark: “the intent to compete by imitating the stephen leather, the double tap (1996). factual issue regarding the likelihood of confusion, and the district court properly mark miller, (brett l. foster and ginger utley of holland & hart, l.l.p., salt tenth circuit and the hornady and control[, federal premium,] approval from one of the others. they could answer yes, the luth survey—commissioned by doubletap—little weight, concluding that it hornady’s expert concluded that, “[w]hile it is impossible to even come its capacity to indicate the source of the goods with which it is used. water pik, registration does not override the requirement that likelihood of confusion be vend-tel-co., 516 f.3d 853, 864 n.8 (10th cir. 2008)). the district court gave a. similarity of the marks hornady was founded in 1949 by joyce hornady. aplt. app. 1047. since - 18 - publish are unlikely to be confused. hornady has not introduced meaningful evidence of 13 succumb to impulses and purchase ammunition carelessly. indeed, the district arises under 28 u.s.c. § 1291, and we affirm. the mark’s use, (2) the nature and extent of advertising and promotion of the the parties’ products; and (6) the strength of the contesting mark. water pik, 726 br. 58. what is “relatively inexpensive” is hardly clear, particularly without 5 - 8 - 58. in 2004, the tap mark became statutorily incontestable under 15 u.s.c. § likelihood of confusion was a genuine issue of fact. aplt. br. 28. it further “tap”—above all differences. aplt. br. 29-30, 33. hornady next argues that the common law trademark infringement, deceptive trade for another double tap thriller, read gary j. crawford, double tap analyzing intent, we look to evidence of “the process of choosing” a mark, not measured by the perceptions of consumers in the marketplace, including the effect been referring to copying a particular mark, not copying a competitor’s product.” water pik, 726 f.3d at 1157. whether doubletap’s founder was aware of myriad flaws can be so readily overlooked, especially considering that hornady’s for the district of utah improperly compared the parties’ marks “side-by-side.” aplee. br. att. 18. both another factor. for example, if two marks are not at all similar, the degree of short for “tactical application police.” id. at 1047, 1061. these products nonexhaustive factors to evaluate whether there is a likelihood of confusion: (1) 3 constitute a high involvement purchase decision, that is, one in which the appropriate circumstances. id.; see also utah lighthouse ministry v. found. for and we have endorsed a helpful test for distinguishing between the two products retail between $30 and $100. aplt. br. 57. perception to connect the mark with the goods,” whereas descriptive terms see aplt. br. 5-6, 8; aplt. app. 1049, 1060-84. plaintiff–appellant hornady manufacturing company, inc., appeals from a mark sinucleanse” among others. 726 f.3d at 1141. although the mark was results could nonetheless be manipulated in a way that reliably demonstrated a evaluating secondary meaning, including direct evidence of recognition by evidence of a likelihood of confusion. id. at 1144. hornady points to two kinds actually appears on packaging,” 726 f.3d at 1147. a standard character overall, there are more than enough differences between the two marks to them; (5) the degree of care that consumers are likely to exercise in purchasing domain name www.doubletapammo.com in 2003 and began selling doubletap deceive consumers”). the district court did not err by referring to the marks’ - 12 - a standard character mark, see sinucleanse, registration no. 3,422,026, we water pik, we rejected as unrealistic a survey comparison that “did not present convey the characteristics of the product, bullets, in a way that marks such as meaning: in gunmanship, a “double tap is a technique of firing two shots in quick the marks’ dissimilarity when evaluating the remaining factors. aplt. br. 33. our with other terms, is highly relevant and necessarily informs the consumer’s “term tap alone.” aplt. reply br. 7. c. actual confusion first, hornady argues that an intent to copy can be inferred from the fact appeal from the united states district court evidence of actual confusion in the marketplace is often considered the best [were] improperly leading.” id. at 1147. we described the survey as follows: march 19, 2014 it specializes in hand-loaded rounds, id. at 653, and produces calibers rarely in water pik, we agreed that the survey at issue was “devoid of any contain the syllable “tap” does not control the similarity inquiry. 11 specific case can depend on a variety of circumstances, including the force of words—“double tap”—within a blue oval and flanked to the left by two bullet corporation, hornady argues that the weight of expert testimony, such as competing consumer gives careful consideration to both the products and brand names being doubletap, inc., on hornady’s trademark infringement claims. our jurisdiction record; but if the nonmovant bears the burden of persuasion, summary judgment that four instances of consumer confusion, including a declaration by a customer the district court erred by not elevating the marks’ one similarity—the word doubletap’s mindset in 2010, when it became aware of hornady’s claim of suggestive of the features of hornady’s products. “tap” does not directly hornady argues that its tap mark qualifies as a “standard character interpretations of a survey, must be tested by the jury, not the court on summary hornady argues that summary judgment was inappropriate because that, at the time of its founding, doubletap was aware of “hornady and its consumer care is unlikely to make a difference.” water pik, 726 f.3d at 1143; certain factors. id. at 30. we apply the six-factor test to evaluate the likelihood include the sub-brands tap, tap fpd, tap urban, tap precision, tap “evidence that the alleged infringer chose a mark with the intent to copy, inferences were not reasonable. respondents were shown only three products and were years. second, there was evidence that hornady spent hundreds of thousands of - 19 - e. consumer care had no affiliation or connection to the first website considerations of the quantity or frequency of consumers’ purchases. nor do any a “family of marks,” it is entitled to an inference that a consumer would presume the effect packaging has on consumers’ ability to recognize a particular mark. in employees that they had received a number of accounts of customer confusion. acronym is defined, “tap” requires the consumer to use imagination to close proximity to that description. see, e.g., aplt. app. 1085, 1092, 1182-84. inference of doubletap’s intent to copy. on summary judgment, however, a water pik, 726 f.3d at 1143. at all times “the key inquiry is whether the instances of actual confusion may be de minimis and may be disregarded in the survey is entitled to little weight on the issue of actual confusion.10 aplt. br. 35, 37-43. the district court did not err in either regard. polysyllabic “double tap.”6 team tires plus, ltd. v. tires plus, inc., 394 f.3d 831, 833 (10th cir. 2005) sight, sound, and meaning.4 hornady cites three pieces of evidence it claims exhibit actual consumer f.3d at 972. however, other methodological flaws support the district court’s the marks as they would appear to a consumer because both marks were shown in conceptual strength is measured on a spectrum of distinctiveness ranging understandable adjective such as “double.” the marks themselves thus appear among the survey’s flaws was the fact that “the survey questions of its mark; doubletap challenges that conclusion. aplee. br. 55-56. between the marks.” universal money centers, 22 f.3d at 1535-36. word differs between the marks. hornady uses “tap” as an identifying prefix in indeed, hornady maintains that it did not need to plead or rely on a when presented side by side with the protected trademark.” sally beauty, 304 products at issue with little care because they are “relatively inexpensive.” aplt. “family of marks” claim because its claim is based on public association of the “doubletap” mark. because, as we mentioned, doubletap adopted a mark weigh this factor in doubletap’s favor. king of the mountain, 185 f.3d at 1093. it is analogous to secondary meaning. court had before it an expert opinion that “the purchase of ammunition would these factors demonstrated that hornady fostered a conscious connection in the of the lanham act,1 likelihood of confusion depends partly on the senior mark’s strength, i.e., the first company shown; (2) affiliated with the first confusion when the allegedly infringing mark is “singly presented, rather than along the following five categories (from least to most distinctive): (1) generic, mark, and similarity of products and marketing—favor hornady. the remaining if consumers are likely to exercise a high degree of care in purchasing a even if the products in this case are “relatively inexpensive” at $13 to $100 a of the mountain sports, inc. v. chrysler corp., 185 f.3d 1084, 1091 (10th cir. quick, light blow) and the tap acronym (tactical application police) suggest the actual confusion to dispute this. thus, hornady has failed to raise a genuine factor, the alleged infringer’s intent is measured at the time it “chose” or and direct-to-consumer sales, including direct sales to law enforcement agencies. shown, or that they were unsure. to answer whether they thought that the [doubletap] mark,” thus entitling it to a similarity analysis devoid of “font style, size, or united states court of appeals item is one commonly “purchased on impulse.” sally beauty, 304 f.3d at 975. same magazines, e.g., american handgunner and shooting illustrated, is - 3 - reviewing the record de novo, we hold that two factors—strength of the see, e.g., id. at 635-46, 1060-98. filed holes. id. at 71, 73. sometime after 2010, the mark morphed into a single and then turn to the survey. company shown to use this name on their website, or (4) features of tap products. aplee. br. att. 22. although it calls that holding that it was entitled to a contrary inference, i.e., that consumers purchase the marketplace.” water pik, 726 f.3d at 1155 (internal quotation marks omitted). doubletap accelerated its marketing efforts apparently to capitalize on the likelihood of confusion. aplt. app. 508. we do not believe that the survey’s doubletap argues that the parties market their products in different on the brief), salt lake city, utah, for defendant - appellee. since 1997, hornady has sold various products under the name “tap,” united states court of appeals commercial strength is “the marketplace recognition value of the mark.” infringement, is irrelevant to its mindset in 2002, when it adopted the before kelly, holloway, and phillips, circuit judges. see water pik, 726 f.3d at 1157. appreciate the nature of hornady’s product: police agencies are frequent water pik, 726 f.3d at 1154 n.5. doubletap, especially those composed of acronyms. the district court came to thanking hornady for sending doubletap ammunition; and (3) a march 2013 of confusion.” utah lighthouse ministry, 527 f.3d at 1055. the district court in january 2010, hornady sent doubletap a cease-and-desist letter, within the mark. 22 f.3d 1527, 1531 (10th cir. 1994). in water pik, this court defendant - appellee. affirmed. hornady has not presented any evidence that consumers commonly consumer is likely to be deceived or confused by the similarity of the marks.” when this is combined with the high degree of care that consumers exercise when f. strength of the tap mark g. conclusion clerk of court reasoning, and we may affirm for any reason supported by the record. brady v. with another brand, and limiting the candidates to hornady and federal premium, products.” aplt. br. 61. this inference fails: “when we have said that evidence 7 infringer in adopting the contested mark; (3) evidence of actual confusion; (4) the id. at 1048-49. successful features of another’s product is vastly different from the intent to which hornady uses its tap mark in the marketplace, including its use of tap confusion is a question of fact, but one amenable to summary judgment in nonmovant is entitled to only those inferences that are “reasonable.” water pik, despite the fact that the mark at issue was a nonstylized word mark.2 the district court correctly weighed this factor in hornady’s favor. 2. commercial strength offered by other ammunition manufacturers, id. at 651. mr. mcnett registered the - 6 - expert did not take into account the leading nature of the survey’s questions. we are not required to restrict ourselves to the district court’s stated - 2 - of packaging. see id. at 1146-47. consumers in the marketplace, not on one factor such as name alone. see water marks and hornady’s failure to produce direct evidence of doubletap’s intent to we compared the parties’ marks in their entirety, including disclaimed words one of hornady’s tap products; (2) a march 2012 letter from a sheriff’s office “evidence of actual confusion is often introduced through the use of dissimilar to hornady’s, and because no evidence demonstrates doubletap’s aplt. app. 130. by suggesting the possibility that doubletap might be connected purchase self-defense ammunition carelessly. aplee. br. att. 20. hornady argues “tap.” id. at 93. efforts to resolve the dispute failed, and this litigation ensued. of our cases take this price-determinative approach. instead, we focus “on the have but one similarity: both carry the word “tap.” the placement and use of that to hold that suggestive because the definition of “tap” (to strike someone or something with a confusion regarding the source of doubletap’s product: (1) a “half a dozen or so” see also universal money centers, 22 f.3d at 1535-36 (evidence of actual consumer’s degree of care exercised at the time of purchase” and ask whether the - 14 - imagination entm’t ltd., 575 f.3d 383, 394 (4th cir. 2009). even when the corporation, doubletap has been described as a “niche” ammunition manufacturer. id. at 651. 1999). similarity is gauged on three levels: “sight, sound, and meaning.” id. at money centers, 22 f.3d at 1535. in universal money centers, we disregarded as intent to copy hornady’s mark in 2002, this factor weighs in doubletap’s favor. “defensible,” doubletap argues that tap is merely descriptive. aplee. br. 55. hornady argues for a different approach to similarity. it first argues that may be granted if the movant points out a lack of evidence to support the claim ammunition they purchase; a product targeted at police is likely to have these aplee. br. att. 8-9. finally, most of hornady’s tap products and its website purchasing ammunition, and the lack of evidence that doubletap intended to cq, tap barrier, bthp tap, and gmx tap. id. at 1047; see, e.g., id. at confusion. aplee. br. att. 16. moreover, this “de minimis evidence of actual d. similarity in products and marketing id. in king of the mountain, we held that evidence of seven episodes of actual in the marketplace. because of this and other methodological flaws, the luth presented with no significantly probative evidence of actual confusion, the 6 mark’s place on the spectrum of distinctiveness; and commercial strength, or its precedent is to the contrary. “the importance of any particular factor in a after viewing [three] packages, respondents were asked comment on hornady’s facebook page demonstrating a customer’s confusion judgment. aplt. br. 55. it argues that methodological flaws go to a survey’s close to correcting for the full extent of” the survey’s methodological flaws, the color” considerations. aplt. br. 3 n.1 (quoting 37 c.f.r. § 2.52(a)); id. at 37-43. 1093. the district court concluded that hornady’s tap mark was both surveys, although their evidentiary value depends on the methodology and however, the key inquiry, the similarity of the marks, strongly favors doubletap. phone calls between 2009 and 2010 from customers who believed doubletap was second, hornady argues that an intent to copy can be inferred from the fact doubletap is ipso facto a perceived member of this family would violate our 1048. confusion was de minimis. 185 f.3d at 1092-93. finally, in water pik, we held “side-by-side” variety. aplt. br. 52-53; aplee. br. 50. we also agree; the luth product.” water pik, 726 f.3d at 1152-53 (internal quotation marks omitted). perspective.” aplt. reply br. 3. - 10 - ways, but the fact that both doubletap and hornady advertise in some of the 2. survey evidence starkly different. moreover, as the district court recognized, the packaging on register “concerns about the survey’s methodology” and “decid[e] that the survey conclusion that the luth survey was entitled to little weight.8 visual similarity between the marks.5 doubletap’s favor. elisabeth a. shumaker - 4 - 1. conceptual strength pik, 726 f.3d at 1146. the tap sub-brands do play one important role: they are ubs fin. servs., inc., 538 f.3d 1319, 1327 (10th cir. 2008). compared the full words “‘sinucleanse’ and ‘sinusense,’ not just the components weight, not its admissibility, and it therefore must be presented to a jury. aplt. mark, and (3) the efforts made to promote a conscious connection, in the public’s we therefore compare the full marks, not just their components. id. at 1156. hornady’s products retail between $13 and $34, and doubletap’s hornady’s complaint alleged trademark infringement under sections 32 and 43(a) confusion undermined “by the sheer lack of similarity between the marks”); cf. consider the effect of marketplace presentation, including “lettering styles, logos products online thereafter. id. at 619. photographs in the record indicate that, as alleged confusion. aplt. br. 61-62. this inference also fails. under the intent prevented the survey from eliciting responses as they might occur spontaneously qualities. see 2 mccarthy on trademarks and unfair competition § 11:67 (4th parties agree that the district court erred in determining that the survey was of the we have identified several factors as helpful in - 5 -

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