PB Brands, LLC v. Patel Shah Indian Grocery

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit

6-10-2009

PB Brands LLC v. Patel Shah Indian Gr
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3205

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 08-3205

PB BRANDS, LLC,
d/b/a PATEL BROTHERS

v.

PATEL SHAH INDIAN GROCERY

PB Brands, LLC,
Appellant

Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-07-cv-04394)
District Judge: Honorable Joseph A. Greenaway

Argued May 22, 2009
____________

Before: RENDELL, STAPLETON, and ALARCÓN*, Circuit Judges

(Filed: June 10, 2009)
____________

*
Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for
the Ninth Circuit, sitting by designation.
Vanessa R. Elliot [ARGUED]
Beattie Padovano, LLC
50 Chestnut Ridge Road
Montvale, NJ 07645
Counsel for Appellee

Charles Quinn [ARGUED]
Graham Curtin, P.A.
P.O. Box 1991
Morristown, NJ 07962-1991
Counsel for Appellant

OPINION OF THE COURT

ALARCÓN, Circuit Judge.

PB Brands, LLC (“PB Brands”) appeals the District Court’s order denying its

motion for a preliminary injunction. PB Brands sought to enjoin Patel Shah Indian

Groceries (“PSIG”)1 from using the name Patel, or any similar name, in commerce. The

District Court held that PB Brands failed to establish that a likelihood of confusion

existed between PB Brands’ service marks and PSIG’s business name. We affirm.

I

Established in 1974, PB Brands is a family business that today claims to be “the

1
In the complaint, PB Brands named PSIG as “Patel Shah Indian Grocery.” This
is also the name used and analyzed by the District Court. The record shows, however,
that the last word of PSIG’s business name is “Groceries,” not “Grocery.”

2
largest grocer of Indian food products in the United States.” PB Brands owns a chain of

thirty-two Indian grocery stores in sixteen states that are operated by either PB Brands or

a PB Brands’ licensee. The stores operate under the names Patel Brothers, Patel’s Cash

& Carry, Patel Brothers Cash & Carry, or Patel Foods. PB Brands also owns the three

service mark registrations—Patel Brothers (registered January 17, 1995), Patel’s Cash &

Carry (registered March 11, 1997), and Patel Brothers Cash & Carry (registered May 24,

2005).

In 2007, Bhavesh Patel—who is not affiliated with PB Brands—planned to open

an Indian grocery store in Fairfield, New Jersey which is located in Essex County.

Bhavesh Patel named his store Patel Shah Indian Groceries. “Patel Shah” is a

combination of Bhavesh Patel’s surname and his wife’s maiden name, Shah. Before

PSIG held its grand opening sale, PB Brands became aware of the name of PSIG’s store.2

PB Brands wrote to PSIG, informed it of PB Brands’ registered marks, and demanded

that PSIG remove the name Patel from its store name and advertising. PB Brands

claimed that PSIG was infringing on PB Brands’ federal trademarks and service marks

and that PB Brands would initiate legal action if PSIG did not change its business name.

PSIG chose not to change its name and held a grand opening of its store on September 13,

2
It is unclear how PB Brands became aware of PSIG. PSIG contends that it
placed a wholesale order with PB Brands and the purchase order identified PSIG. At oral
argument, however, PB Brands stated that it engaged in retail, and not wholesale sales.

3
2007. PB Brands filed suit the same day alleging trademark infringement and unfair

competition, violations of Lanham Act, 15 U.S.C. §§ 1114,3 1125.4

3
The relevant portion of this statute provides:

(1) Any person who shall, without the consent of the
registrant --

(a) use in commerce any reproduction, counterfeit, copy, or
colorable imitation of a registered mark in connection with
the sale, offering for sale, distribution, or advertising of any
goods or services on or in connection with which such use is
likely to cause confusion, or to cause mistake, or to deceive;
or

(b) reproduce, counterfeit, copy, or colorably imitate a
registered mark and apply such reproduction, counterfeit,
copy, or colorable imitation to labels, signs, prints, packages,
wrappers, receptacles or advertisements intended to be used in
commerce upon or in connection with the sale, offering for
sale, distribution, or advertising of goods or services on or in
connection with which such use is likely to cause confusion,
or to cause mistake, or to deceive,

shall be liable in a civil action by the registrant for the
remedies hereinafter provided. Under subsection (b) hereof,
the registrant shall not be entitled to recover profits or
damages unless the acts have been committed with knowledge
that such imitation is intended to be used to cause confusion,
or to cause mistake, or to deceive.

15 U.S.C. § 1114(1) (2005).
4
The relevant portion of this statute provides:

(continued...)

4
 Two weeks later, on September 28, 2007, PB Brands filed a motion for a

preliminary injunction seeking to enjoin PSIG from its alleged service mark infringement

and unfair competition. PSIG opposed this motion on October 16, 2007. PB Brands filed

a reply on October 25, 2007. On November 29, 2007, the District Court held a hearing on

the motion. The District Court denied the motion on June 27, 2008. PB Brands filed a

timely appeal.

The District Court had original jurisdiction under 15 U.S.C. § 1121(a) and 28

4
(...continued)
(a) Civil action

(1) Any person who, on or in connection with any goods or
services, . . . uses in commerce any word, term, name,
symbol, or device, or any combination thereof, or any false
designation of origin, false or misleading description of fact,
or false or misleading representation of fact, which--

(A) is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of such
person with another person, or as to the origin, sponsorship,
or approval of his or her goods, services, or commercial
activities by another person, or

(B) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of his or
her or another person's goods, services, or commercial
activities, shall be liable in a civil action by any person who
believes that he or she is or is likely to be damaged by such
act.

15 U.S.C. § 1125(a) (2006).

5
U.S.C. § 1338. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

II

PB Brands contends that the District Court improperly applied and weighted the

factors set forth in Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 462 (3d Cir. 1983), to

reach its conclusion that PB Brands’ marks and PSIG’s business name were not

confusingly similar. We review “the denial of a preliminary injunction for ‘an abuse of

discretion, an error of law, or a clear mistake in the consideration of proof.’” Kos

Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (citing AT&T v. Winback

& Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)).

III

“A plaintiff seeking a preliminary injunction must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374

(2008). The first element—whether PB Brands established a likelihood of success on the

merits—is the issue before this Court.

A plaintiff can successfully establish a trademark claim if it proves:

Generally, to win a trademark claim, a plaintiff must establish
that (1) the marks are valid and legally protectable; (2) the
marks are owned by the plaintiff; and (3) the defendant’s use

6
 of the marks to identify goods or services is likely to create
confusion concerning the origin of the goods or services.

Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990).

“If the mark at issue is federally registered and has become incontestible, then

validity, legal protectability, and ownership are proved.” Commerce Nat’l Ins. Servs.,

Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 438 (3d Cir. 2000). “A trademark

becomes incontestable after the owner files affidavits stating that the mark has been

registered, that it has been in continuous use for five consecutive years, and that there is

no pending proceeding and there has been no adverse decision concerning the registrant’s

ownership or right to registration.” Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30

F.3d 466, 472 n.7 (3d Cir. 1994). PB Brands submitted an affidavit declaring federal

registration and showing incontestability of the service marks “Patel Brothers” and

“Patel’s Cash & Carry.” Therefore, with respect to those marks, PB Brands has

demonstrated validity, legal protectability, and ownership. Those requirements are

undisputed, and thus the first two elements of trademark infringement are satisfied.

Because the first two elements are satisfied, we must decide whether PB Brands

demonstrated that there is a likelihood of confusion between its marks and PSIG’s

business name in order to succeed on the merits of its request for a preliminary injunction.

“Once a trademark owner demonstrates likelihood of confusion, it is entitled to injunctive

7
relief.” Lapp, 721 F.2d at 462. Likelihood of confusion exists when “consumers viewing

the mark would probably assume the product or service it represents is associated with the

source of a different product or service identified by a similar mark.” Scott Paper Co. v.

Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1229 (3d Cir. 1978). This is evaluated “from

the perspective of ordinary consumers, not from the perspective of people in the trade.”

Fisons, 30 F.3d at 476. This Court considers ten factors to determine whether a

likelihood of confusion exists:

(1) the degree of similarity between the owner’s mark and the
alleged infringing mark; (2) the strength of the owner’s mark;
(3) the price of the goods and other factors indicative of the
care and attention expected of consumers when making a
purchase; (4) the length of time the defendant has used the
mark without evidence of actual confusion arising; (5) the
intent of the defendant in adopting the mark; (6) the evidence
of actual confusion; (7) whether the goods, though not
competing, are marketed through the same channels of trade
and advertised through the same media; (8) the extent to
which the targets of the parties’ sales efforts are the same; (9)
the relationship of the goods in the minds of consumers
because of the similarity of function; (10) other facts
suggesting that the consuming public might expect the prior
owner to manufacture a product in the defendant’s market, or
that he is likely to expand into that market.

Lapp, 721 F.2d at 463 (citing Scott, 589 F.2d at 1229).

Although no fact is “determinative . . . and each factor must be weighed and

balanced against one against the other,” Checkpoint Sys., Inc. v. Check Point Software

8
Techs., Inc., 269 F.3d 270, 280 (3d Cir. 2001), when the marks directly compete “[t]he

single most important factor in determining likelihood of confusion is mark similarity.” A

& H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 216 (3d Cir. 2000).

In this appeal, PB Brands challenges the District Court’s conclusions of the first, second,

third, seventh, eighth, ninth, and tenth Lapp factors.

The record shows that the District Court correctly analyzed the fourth, fifth, and

sixth factors. No evidence supported either party with regard to the fourth or sixth

factors—the length of time PSIG had used the mark and evidence of customer’s actual

confusion—as this action was filed the day PSIG held its grand opening sale. Thus, these

factors were neutral. The fifth factor, intent, weighed in favor of PSIG. PSIG chose the

name based on a combination of the owner and his wife’s surnames, and PB Brands

presented no evidence that PSIG intended to confuse or deceive the public. See

Checkpoint, 269 F.3d at 286 (noting that “a party’s intentional use of another party’s

mark to cause confusion” weighs in favor of finding likelihood of confusion).

A

The first Lapp factor is the degree of similarity between PB Brands’ marks and

PSIG’s allegedly infringing mark. This is a comparison between “Patel Brothers” or

“Patel Cash & Carry” and “Patel Shah Indian Groceries.”

“[T]the overarching question is whether the marks, ‘viewed in their entirety,’ are

9
confusingly similar.” Kos, 369 F.3d at 714 (citing A & H, 237 F.3d at 216). To

determine the similarity of the mark, a court must decide “‘whether the labels create the

same overall impression when viewed separately.’” Fisons, 30 F.3d at 477-78 (citations

omitted). To make this determination, courts “compare the appearance, sound and

meaning of the marks.” Checkpoint, 269 F.3d at 281. Additionally, a court may consider

the linguistic similarities of words in its evaluation of a trademark. Kos, 369 F.3d at 713

(comparing Advicor and Altocor, “seven-letter three syllable words that begin and end

with the same letters and the same sounds”).

In A & H, for example, this Court approved the district court’s analysis of the sight

and sound of two marks. 237 F.3d at 217-18. It analyzed the similarity between the

plaintiff’s mark MIRACLESUIT and the defendant-competitor’s mark THE MIRACLE

BRA. Id. at 206. The district court “noted that although they share the term MIRACLE,

there are different numbers of syllables, and the last syllable of each is different.

Moreover, Miraclesuit bleeds two words together while The Miracle Bra consists of three

discrete words. In short, the District Court concluded that the two marks sound different.”

Id. at 217. This Court also approved the court’s analysis of the look and meaning of the

marks, including the consideration of the generic words “the” and “bra” and “suit.” Id. at

217-18.

Likewise, here, the District Court considered the marks in their entirety and

10
correctly concluded that the first factor favored PSIG because the marks did not look or

sound alike. See PB Brands, LLC v. Patel Shah Indian Grocery, No. 07-4394, 2008 WL

2622846, at *4-6 (D.N.J. June 27, 2008). In this case, like A & H, the non-common

words distinguish the marks. The names Patel Brothers, Patel Cash & Carry, and Patel

Shah Indian Groceries differ in sight, sound, and length. Moreover, each name contains a

different number of words and syllables, and all three names end with different sounds.

Further, the strongest sound in Patel Brothers is “Brothers” distinguishing it from Patel

Shah. Additionally, the word “Brothers” indicates a fraternal, sibling relationship. The

name Patel Shah Indian Groceries is gender neutral and connotes different antecedents.

Finally, each name differs in the generic terms it uses—“Brothers,” “Cash & Carry,” and

“Indian Groceries.” Accordingly, the District Court did not clearly err in finding that,

when considered in their entirety, the sight and sound of the marks differed and that the

marks were neither confusingly similar nor likely to be confused in the mind of a roving

consumer. Thus, this most important factor weighs in PSIG’s favor.5

5
While we hold that the District Court correctly found the marks dissimilar in
rejecting the motion for a preliminary injunction, we also conclude, however, that the
District Court improperly relied on two forms of evidence in conducting its analysis of
the first factor. First, because “Patel” is the second most common Indian surname in
India, the District Court reasoned that the frequent use of the name would cause
consumers to distinguish the marks. PB Brands, 2008 WL 2622846, at *4-5. The
District Court should have considered the commonality of names in its analysis of the
strength of the mark—the second Lapp factor—not the similarity of the mark. A & H,
(continued...)

11
 B

The next factor is the strength of the PB Brands’ marks. The strength of an

owner’s mark is “determined by (1) the distinctiveness or conceptual strength of the mark

and (2) its commercial strength or marketplace recognition.” Checkpoint, 269 F.3d at

282. The District Court calculated this factor as neutral by reasoning that while PB

Brands’ marks were not distinctive, its advertising and length of business operations

resulted in market strength.

“Although the wide use of a term within the market at issue is more probative than

the wide use of a term in other markets, the extensive use of the term in other markets

may also have a weakening effect on the strength of the mark.” A & H, 237 F.3d at 223.

Moreover, “as a general rule, widespread use of even a distinctive mark may weaken the

mark.” Citizens Fin. Group, Inc. v. Citizens Nat’l Bank, 383 F.3d 110, 123 (3d Cir.

2004).

5
(...continued)
237 F.3d at 223 (“Although the wide use of a term within the market at issue is more
probative than the wide use of a term in other markets, the extensive use of the term in
other markets may also have a weakening effect on the strength of the mark.”) (citation
omitted). Second, the District Court considered a disclaimer in PSIG’s advertising that
read “[PSIG] is not affiliated with Patel Brothers.” PB Brands, 2008 WL 2622846, at *5.
PSIG’s counsel introduced the disclaimer for the first time at oral argument. PB Brands
did not have an opportunity to review the disclaimer prior to the hearing or present any
argument regarding its effect. Accordingly, the District Court erred in considering the
disclaimer in its evaluation of the Lapp factors.

12
 The District Court correctly considered that well over 100 businesses in New

Jersey use the surname Patel as the first name of their business. This fact weakens PB

Brands’ claim that its mark is distinctive. As the District Court explained, the prevalence

of the use of the term Patel in business names necessitates that “consumers . . . exercise

care and look to the remaining words in the business name in making purchasing

decisions.” PB Brands, 2008 WL 2622846, at *7; see Triumph Hosiery Mills, Inc. v.

Triumph Int’l Corp., 308 F.2d 196, 199 n.2 (2d Cir. 1962) (“The mark ‘Triumph’ is a

so-called weak mark, i.e. it has been used many times to identify many types of products

and services.”). Furthermore, the evidence shows that Patel is the second most common

Indian surname. This fact supports the District Court’s determination that the second

Lapp factor does not fall in favor of PB Brands. Scott, 589 F.2d at 1231 (“Selection of a

mark with a common surname naturally entails a risk of some uncertainty and the law will

not assure absolute protection.”).

The District Court next weighed the marks’ weakness against the commercial

strength or marketplace recognition of PB Brands’ marks. “Although evidence of money

spent does not automatically translate into consumer recognition, it is clearly relevant,

and hence the District Court’s methodology and conclusion does not appear to be in error

or to involve a misapplication of the law.” A & H, 237 F.3d at 224. Likewise, here, the

District Court considered that PB Brands advertises on a national and local basis,

13
spending approximately $50,000 per month and additional undisclosed amounts by

individual stores in local markets.

The District Court properly balanced the countervailing considerations—the

frequent use of the Patel name as a business identifier and PB Brands’ expenditures on

advertising—to reach the conclusion that the second factor was neutral.

C

We next consider the “price of the goods and other factors indicative of the care

and attention expected of consumers when making a purchase.” Lapp, 721 F.2d at 463.

“When consumers exercise heightened care in evaluating the relevant products before

making purchasing decisions, courts have found there is not a strong likelihood of

confusion.” Checkpoint, 269 F.3d at 284. Thus, “[t]he greater the care and attention, the

less the likelihood of confusion.” Fisons, 30 F.3d at 476 n.12. “Inexpensive goods

require consumers to exercise less care in their selection than expensive ones. The more

important the use of the product, the more care that must be exercised in its selection.”

Versa Prods. Co. v. Bifold Co. (Mfg.), 50 F.3d 189, 204 (3d Cir. 1995).

PB Brands unsuccessfully argued to the District Court that customers exercised a

low degree of care in selecting an Indian grocery store because the individual items sold

at the stores cost little. PB Brands, 2008 WL 2622846, at *8. In this appeal, PB Brands

14
makes the same argument.6 The District Court correctly determined that this factor was

neutral because “[n]either party provided sufficient evidence to elucidate” the degree of

care consumers spend on choosing an Indian grocery store.7 Id. Given the lack of

evidence presented to the District Court, we agree that this factor could not weigh in favor

of either PB Brands or PSIG.

D

Next, we consider whether PB Brands’ and PSIG’s goods are marketed through

the same channels of trade and advertised through the same media. “Courts have

recognized that ‘the greater the similarity in advertising and marketing campaigns, the

6
PB Brands’ argument fails to address the question regarding the degree of care
that consumers exercise in choosing where to shop. Instead, PB Brands addresses the
degree of care consumers use in purchasing individual items after they have chosen where
to shop. See, e.g., 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair
Competition § 23:95 (4th ed. 2003) (“[p]urchasers of relatively inexpensive goods such
as ordinary grocery store foods are held to a lesser standard of purchasing care.” ); Gray
v. Meijer, Inc., 295 F.3d 641, 649 (6th Cir. 2002) (snack foods); Starbucks Coffee Co. v.
Marshall S. Ruben, 78 U.S.P.Q.2d 1741, 1752 (T.T.A.B. 2006) (coffee); Specialty
Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 672 (Fed. Cir. 1984) (tea);
In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 1567 (Fed. Cir. 1984) (bread
and cheese).
7
We agree with PB Brands that the District Court erred in finding that
“households in the New York metropolitan area spend[] 13.5% of [their] income on
groceries.” PB Brands, 2008 WL 2622846, at *8. The evidence shows that households
actually spend only 7.4% of their income on groceries and spend the remaining 6.1% on
food prepared away from home, such as at restaurants, for carry out, etc. Nevertheless,
the error was harmless because the court did not rely on this evidence to reach its
conclusion that factor three was neutral. See id.

15
greater the likelihood of confusion.’” Checkpoint, 269 F.3d at 288-89 (citing Acxiom

Corp. v. Axiom, Inc., 27 F. Supp. 2d 478, 502 (D. Del. 1998)). “This is a fact intensive

inquiry” that requires courts to “examine the trade exhibitions, publications and other

media the parties use in marketing their products as well as the manner in which the

parties use their sales force to sell their products to consumers.” Id.

The evidence shows that PB Brands advertises nationally using various forms of

media, including television, radio, newspapers, magazines, and trade publications. PB

Brands, 2008 WL 2622846, at *10. In addition, PB Brands prints flyers, brochures, and

calendars. Id. Conversely, PSIG advertises to the local Fairfield, New Jersey community

solely through the use of flyers. Id. The District Court correctly considered this

evidence. It did not abuse its discretion by concluding that PB Brands and PSIG did not

market their goods through he same channels of trade or advertise in the same media.

E

The District Court held that factor eight, the targets of the parties’ sales efforts, fell

in PB Brands’ favor because both parties target the same group of consumers and, though

PB Brands did not have stores in Essex County, consumers could be exposed to its

advertising. “[W]hen parties target their sales efforts to the same consumers, there is a

stronger likelihood of confusion.” Checkpoint, 269 F.3d at 289 (citing Lapp, 721 F.2d at

463-64). Although this factor should have weighed entirely in PB Brands’ favor, the

16
District Court discounted its weight for two reasons. First, the court reasoned that the

sight and sound of the marks differed. PB Brands, 2008 WL 2622846, at *11. Second, it

considered PSIG’s use of the disclaimer. Id. As explained above, the District Court

should not have considered PSIG’s disclaimer. Any error caused by this improper

consideration, however, was harmless. Even if factor eight weighed entirely in favor of

PB Brands, the overall balance of the Lapp factors would not change.

F

PB Brands contends that although the District Court concluded factor nine fell in

its favor, the court should have given it more weight. PB Brands cites no authority for its

proposition that factor nine should be accorded a greater degree of weight than applied by

the District Court. The District Court analyzed “‘whether the goods are similar enough

that a consumer would assume they were offered by the same source.’” PB Brands, 2008

WL 2622846, at *11 (citing Checkpoint, 269 F.3d at 386). The court concluded, “[PB

Brands] argues that the use of the marks is identical; namely, the marks are being used to

market Indian groceries. This Court agrees. . . . This factor weighs in favor of [PB

Brands.]” Id. The degree of weight given to this factor by the District Court was not

clearly erroneous.

G

17
 The last factor asks whether “other facts suggesting that the consuming public

might expect the prior owner to manufacture a product in the defendant’s market, or that

he is likely to expand into that market.” Lapp, 721 F.2d at 463. As explained in

Checkpoint:

When it appears extremely likely . . . that the trademark owner
will soon enter the defendant’s field, this . . . factor weighs
heavily in favor of injunctive relief. Under this factor we look
not only to evidence that a plaintiff has actually moved into
the defendant’s market, but also to other facts suggesting that
the consuming public might expect the prior owner to
manufacture a product in the defendant’s market, or that it is
likely to expand into that market.

269 F.3d at 290 (quoting Lapp, 721 F.2d at 463) (internal quotations and citation omitted)

(emphasis added).

The District Court held that this factor weighed in favor of PSIG because PB

Brands did not operate any stores in Essex County, where PSIG is located, and because it

did not present any evidence that it intended to expand into Essex County. PB Brands

claims that the specific geographical area is irrelevant because its advertising reaches the

regional area. This argument does not challenge the basis for the District Court’s

decision: no evidence exists indicating that PB Brands plans to expand into PSIG’s

market area. Accordingly, the District Court did not abuse its discretion by weighing this

factor in PSIG’s favor.

18
 CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the District Court.

19