In the case Max Rack, Inc. v Core Health and Fitness, LLC., the U.S. District Court for the Southern District of Ohio denied MRI’s summary judgment motion for trademark infringement. MRI markets and sells weightlifting equipment, including a machine known as the "Max Rack," and Core uses its "Freedom Rack" mark on similar products. MRI sued Core, claiming a likelihood of confusion between the two marks. In its opinion denying Plaintiff’s motion for summary judgment, the court found that several factors weighed against a likelihood of confusion. Specifically, the court was unable to conclude with any certainty that Plaintiff’s mark is particularly strong within its field. Additionally, the court noted that MRI presented nothing more than de minimis evidence of actual confusion, and that the parties' machines were purchased by sophisticated commercial buyers.
However, the court also found that “several factors weighed in favor of likelihood of confusion,” including the relatedness of the goods and the marketing channels used. The court also found that two factors presented “material genuine issues of fact surrounding likelihood of confusion.” The court concluded, “In sum, three factors weigh against, two factors weigh in favor of, and two factors present material genuine issues of fact surrounding likelihood of confusion. While these factors are helpful in guiding the Court’s analysis, the ultimate question remains ‘whether relevant consumers are likely to believe that the products or services offered by the parties are affiliated in some way.’ A reasonable juror considering Defendants’ unauthorized references to MAX RACK, coupled with the similarity of the parties’ products, could come out on either side of this question.” For this reason, the Plaintiff’s motion was denied.
The outcome of this matter may have been very different if MRI had proffered a trademark survey demonstrating a likelihood of confusion between the two marks. Indeed, a likelihood of confusion survey, conducted by a qualified trademark survey expert, can be a powerful piece of evidence for courts to consider in trademark matters such as this. In this matter, a likelihood of confusion survey would have answered the court’s ultimate question related relevant consumers’ beliefs about the products offered by the two parties. If a substantial number of respondents believed that the two marks were related or affiliated in some way, it would have provided strong evidence of potential confusion.
Applied Marketing Science (AMS) has extensive experience conducting surveys to measure likelihood of confusion in trademark and trade dress infringement matters. Our surveys have been submitted and accepted as evidence in litigation matters involving a broad range of products and services. To learn more about AMS trademark survey experts and our Litigation Support services, please contact Jason Och at joch@ams-inc.com.
