Page:Quality Inns v. McDonald's.pdf/22

 with a clarifying sign underneath it which reads, “by Quality International.” The magazine advertisement was so diluted in its presentation, focusing principally on the Quality Inns range of products, that the Court concludes that it was not useful data to consider. Likewise, there was significant confusion relating to the yellow page advertising. In addition, the yellow page advertisement was under a display advertisement for Hilton Hotels leaving a significant number of respondents to relate the advertisement to Hilton Hotels. The Court does not consider the results of the surveys on these two stimuli as relevant.

The response to the question of who owns or sponsors McSleep Inn as shown in the artist’s rendering was relevant. This was a depiction of what a McSleep Inn would look like to a consumer and measures at least that response.

The Court accepts that data, however, with some reservations in view of the inclusion of the sign “by Quality International” prominently added under the McSleep Inn logo. The issues in this lawsuit were framed around the use of the name McSleep Inn and perhaps the use of McSleep Inn’s logo that is subject to registration in the Patent and Trademark Office. In none of those usages is the qualifying language “by Quality International” included. Quality International contends, however, that since it will be using the qualifying words, they should be included in any inquiry. Nothing requires that “by Quality International” be included in every use of McSleep Inn. The evidence showed that in fact individual franchisees of Quality International did not advertise the association with Quality International. Thus, a Comfort Inn franchisee would only advertise in brochures its own inn and the amenities offered there. Also, interstate and limited access highways that have signs advertising inns do not allow the qualifying language “by Quality International” on them. They would only allow the McSleep Inn logo. The spoken or written use of McSleep Inn would not always be able to include the limiting phrase.

The most troubling aspect of the survey using the limiting phrase, however, was the fact that over 70 percent of the respondents who correctly associated McSleep Inn with Quality International did so because they were reading the qualifying language “by Quality International.” While that response may measure the particular stimulus which includes the logo with the qualifying language, it does not measure the confusion that is caused by the name McSleep Inn or by the McSleep Inn logo.

Notwithstanding these concerns with the Jacoby survey, it did measure the extent of confusion in response to that limited stimulus. Twenty-four of the 147 persons who understood that McSleep Inn was being advertised, or 16.3 percent, said that McDonald’s was the owner or operator of the hotel, and if the survey is limited to persons who make the decision about where to stay when traveling, 21.4 percent believed that McSleep Inn, even with the clarifying language, was owned or sponsored by McDonald’s. This is, in the Court’s judgment, the most indicting evidence on the likelihood of confusion. In the absence of the clarifying language, the evidence shows that the extent of confusion jumps significantly. Even the 16.3 percent is an appreciable number that cannot be dismissed.

Both experts acknowledged that there are inherent distortions in surveys which they call “noise.” But none estimated that the extent of this noise would ever rise above a few percentage points. Thus, the Court concludes that with the 16.3 percent minimum shown by the evidence, an appreciable number of consumers are likely to be confused by the use of the name McSleep Inn, even with the qualifying language “by Quality International.”

Similarity of Contexts of Marks

Quality International urges the Court to compare visually the logos of the parties to assess on a visual basis the likelihood of confusion. It also directs the attention of the Court to the appearances of facilities and the differences of advertising, all factors listed by the Fourth Circuit in Pizzeria Uno Corp. v. Temple, supra, for