Page:Quality Inns v. McDonald's.pdf/23

 consideration in determining the likelihood of confusion.

Based on the observation of the logos of the parties, pictures and renderings of the facilities, and the advertising utilized by the parties, the Court agrees that, in the absence of the name McSleep Inn, confusion is not likely to result. The logos of the parties are distinctive, as are the facilities. By looking at a rendering of a McSleep Inn facility one would not be confused into believing it was sponsored by or related to McDonald’s or its restaurants. The advertising of Quality International, moreover, focuses on the traveler and usually uses the print medium that confronts the traveler. On the other hand, McDonald’s primarily utilizes national television advertising.

Thus, although the Court agrees that the logos in design, color and shape, as well as the facilities, are not confusingly similar, it is the use of the name McSleep Inn that suggests an ownership, sponsorship, or association with McDonald’s.

The confusion caused by the name is not mitigated to an acceptable level by the distinctive uses of the logo, facilities and advertising. Even use of the clarifying language “by Quality International” and the substantial use of its corporate signature does not avoid the likelihood of confusion in this case. Quality International’s own survey evidence shows that even with all the mitigating factors, which were clearly depicted (more clearly than would be the case in real life) in a rendering of a McSleep Inn, still 16% to 20% of the public would continue to believe that it was sponsored by McDonald’s. Projected across the 144 million people who are considered to be the potential audience for McSleep Inn, well over 20 million would be likely to be confused. This is not an insubstantial number.

The Court concludes that the name McSleep is so similar to the McDonald’s family of marks that in whatever clothing it is dressed, the public will persist in perceiving some connection with McDonald’s. The marketing hook, as Mr. Hazard observed, is the name McSleep, which would be “instantly recognized.” So long as the word McSleep is used, the infringement occurs. This holding, however, would not preclude a name such as “Sleep–Inn,” for it is not the logo or the word “sleep” that causes the problem; it is the use of the fancifully coined word, McSleep.

Relatedness of Products

Quality International urges that marks in the lodging business cannot be confused with marks in the food business. This is not based on applicable legal principles and is not consistent with the demonstrated facts.

The evidence did show that Quality International’s McSleep Inns would not compete with a line of products sponsored by McDonald’s. There was no showing that McDonald’s was in the lodging business or that it planned to enter that market. It has developed a strategy to pursue the long-distance traveler and to promote plazas called McStop, but in each case, the purpose is and would be to promote its food business.

The evidence showed, however, that the fast food and the motel business were related. Some motels actually provide food in competition with fast food businesses which seem to spring up around motels. Quality International recognizes this relatedness in its own franchise agreement which prohibits its franchisees from using the name McSleep Inn or variation of it in the food business. Quality International’s other products, moreover, promote food and lodging together. The public has come to associate the two markets to such an extent that one would expect that McDonald’s has or would enter into this market. This was amply demonstrated by all the survey evidence in which an applicable number of the public would believe that a McSleep Inn was sponsored by McDonald’s.

Thus, while the Court does not consider it necessary to find the relatedness of markets, because the evidence of confusion builds in that perception by the public, the evidence is undisputed that lodging and fast foods are natural partners, as Mr. Hazard noted in the notes that he prepared