Page:Urantia Foundation v. Maaherra (D. Ariz. 1995).pdf/18

 approximate each other. See ''Russell Chem. Co. v. Wyandotte Chems. Corp.'', 337 F.2d 660, 661 (C.C.P.A.1964) (holding when marks are nearly identical, products must be substantially different for confusion to be unlikely).

The defendant admits she used “URANTIA” and describes her reproductions of the plaintiff’s symbol of three blue concentric circles as “exact replications or as near thereto us practicable.” (Def.’s Answer at 4, ¶26.) Consequently, I find that the two marks are not only similar but identical.

“Evidence that use of the two marks has already led to confusion is persuasive proof that future confusion is likely.” AMF, 599 F.2d at 352 (citing Plough, Inc. v. Kreis Laboratories, 314 F.2d 635, 639 (9th Cir.1963)). The plaintiff relies on two letters, written by consumers who had allegedly received the defendant’s product, to support its claim of actual confusion. (Third Aff. of Bondi at Ex. C.) The plaintiff, however, does not show that the computer disks to which the aforementioned letters refer originated with the defendant. I find that the existence of only two letters after allegedly five years of infringement is not sufficient proof of actual confusion to weigh this factor in favor of the plaintiff.

If convergent marketing channels are employed in the distribution of related products, an increased likelihood of confusion may result. There is scant evidence of such a situation in the instant case. “The Foundation generally offers The URANTIA Book to the general public through retail bookstores.” (Third Aff. of Bondi at 2, ¶3.) In 1994, ninety-six percent of all the English language books sold by the plaintiff were sold to bookstores for resale to the public. Id. ¶4. The plaintiff also uses other marketing channels typically associated with book distribution: advertisements, conventions, and book fairs. Id. at 3, ¶5. The defendant, however, is alleged to have distributed free of charge a limited number of computer disks to individuals who had not even solicited the product. (Second Aff. of Wharton Ex. A at 8–9, ¶22.) I find that the marketing channels do not converge and, therefore, this factor weighs in favor of the defendant.

If a purchaser has expertise in the field in which the goods fall, or if the goods are expensive or of a highly technical nature, then it is more likely that the purchaser will exercise a higher degree of care in choosing the product. Consequently, the more care one uses in selecting a product, the less likely one is to confuse it with another product. See AMF, 599 F.2d at 353. But see Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1195 (2d Cir.1971) (warning against undue reliance on “supposed sophistication” of consumers). The plaintiff’s book is neither expensive nor highly technical, and its purchasers are not generally bibliophiles. These facts tend to support a finding that confusion is likely.

However, at least two facts weigh in the defendant’s favor. First, the manner in which the consumers received the defendant’s product may have prompted increased suspicion as to its origin and authenticity. Usually, a publisher does not give away its product, especially when the product is a two thousand page book. Second, the plaintiff states that a comparison of the two products revealed only “minor differences.” (Second Aff. of Wharton Ex. A at 15, ¶39.) If the differences had been substantial, they may have fostered doubt as to the product’s legitimacy, but they were simply “typographical errors, resulting in some missing punctuation and extra space, and the absence of any use of italics.” Id. at 8, ¶20.

Courts have adopted two separate approaches to evaluate the significance of the quality of a second comer’s product. A product of inferior quality is more likely to injure the trademark owner’s reputation, if confusion occurs. Conversely, a product of equal quality may be more apt to promote confusion because consumers are more inclined to assume that similar products come from the same source. Nikon Inc. v. Ikon Corp., 987 F.2d 91, 95 (2d Cir.1993) (citation omitted).