concurring.
I join the panel’s thoughtful and well-reasoned opinion, but write separately to express my understanding of the decision’s effect. In their appeal, the defendants urged this court to apply the “Dawn Dom.it Rule” as articulated in the Second Circuit’s decision in Dawn Donut v. Hart’s Food Stores, 267 F.2d 358 (2d Cir.1959). In that case, the Second Circuit set forth a per se rule that there could never be a likelihood of confusion-and an injunction could not be issued— so long as the parties operated in separate and distinct geographical markets, and the senior trademark user had no imminent plans to expand into the infringer’s territory. Id. at 364. Over time, the Dawn Donut Rule gained acceptance in the majority of the circuits. See, e.g., American Foods, Inc. v. Golden Flake, Inc., 312 F.2d 619, 626 (5th Cir.1963); Holiday Inns of America, Inc. v. B & B Corp., 409 F.2d 614, 618-19 (3d Cir.1969); Mister Donut of America, Inc. v. Mr. *1057Donut, Inc., 418 F.2d 838, 844 (9th Cir.1969); Coach House Restaurant v. Coach and Six Restaurants, 934 F.2d 1551, 1562 & n. 49 (11th Cir.1991); Minnesota Pet Breeders v. Schell & Kampeter, 41 F.3d 1242, 1246 (8th Cir.1994); Lone Star Steakhouse & Saloon v. Alpha of Virginia, 43 F.3d 922, 931-33 (4th Cir.1995). We, ourselves, once expressed approval of the Dawn Donut Rule in dicta. See Old Dutch Foods, Inc. v. Dan Dee Pretzel & Potato Chip Co., 477 F.2d 150, 157 n. 6 (6th Cir.1973).
However, as section II-C of the panel opinion makes clear, the Sixth Circuit instead employs an eight-point test to assess the likelihood of confusion of two competing marks. The likelihood of entry is but only one factor to be considered in determining whether a senior user is entitled to an injunction. See, e.g., U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189-90 (6th Cir.1997). We first adopted the eight-point test in Frisch’s Restaurants, Inc. v. Elby’s Big Boy, 670 F.2d 642, 648 (6th Cir.1982). Even though Frisch’s Restaurants did not explicitly reject the Dawn Donut Rule, the facts and disposition of that case strongly disfavored a per se rule against injunctions when the parties do not compete in the same geographical market. The plaintiff in Frisch’s Restaurants had the exclusive right to use the contested term “Big Boy” for its restaurant establishments in the state of Ohio, whereas the defendant had the right to use the mark in West Virginia. Id. at 644-45. The plaintiff sought relief under the Lanham Act since consumers in Eastern Ohio were allegedly left with the false impression that there was a connection between the plaintiffs and defendant’s operations, even though the plaintiff itself did not operate any restaurants in the Eastern Ohio area. Id. at 649. Nevertheless, we held that the plaintiff was entitled to an injunction since it otherwise satisfied the eight-point test. Most telling is our holding that “it is evident that [plaintiff] suffers a cognizable injury in this instance because it would have to combat consumer misperceptions about the availability of Big Boy products if it were to expand into the area itself or license restaurants in that area to operate under the Big Boy trademark.” Id. (emphasis added).
Application of the eight-point test enunciated in Frisch’s Restaurants to determine the propriety of an injunction makes perfect sense. The trademark laws protect a senior holder from confusing exploitation of its commercial marks. Yale Elec. Corp. v. Robertson, 26 F.2d 972, 974 (2d Cir.1928) (Learned Hand, J.). If a plaintiff can otherwise demonstrate a likelihood of confusion by a strong showing on the other seven factors, it seems an odd result that the same plaintiff cannot obtain an injunction against an infringer simply because the parties operate in different geographical regions.
The Dawn Donut Rule was enunciated in 1959. Entering the new millennium, our society is far more mobile than it was four decades ago. For this reason, and given that recent technological innovations such as the Internet are increasingly deconstructing geographical barriers for marketing purposes, it appears to me that a re-examination of precedents would be timely to determine whether the Dawn Donut Rule has outlived its usefulness.