dissenting.
I respectfully disagree with the majority opinion. It appears to me that application of established Nebraska law to the facts in this case requires the affirmance of the decision of the district court granting Equitable Building and Loan an injunction against Equitable Mortgage’s use of the name “Equitable.”
ANALYSIS
The law in Nebraska is clear that in a case for trade name infringement, the plaintiff has the burden to prove by a preponderance of the evidence the existence of (1) a valid trade name entitled to protection and (2) a substantial similarity between the plaintiff’s and the defendant’s names, which would result in either actual or probable deception or confusion by ordinary persons dealing with ordinary caution. Nebraska Irrigation, Inc. v. Koch, 246 Neb. 856, 523 N.W.2d 676 (1994).
Equitable Mortgage does not raise as an assignment of error that the district court erred in its implicit finding that “Equitable” constitutes a valid trade name entitled to protection. Because Equitable Mortgage has not raised a challenge on this issue, it must be assumed for the purposes of this appeal that “Equitable” is a valid trade name. Thus, I proceed to address whether there is a substantial similarity between the parties’ names, which would *868result in either actual or probable deception or confusion by ordinary persons dealing with ordinary caution.
The likelihood of confusion in the use of trade names can be shown by presenting circumstances from which courts might conclude that persons are likely to transact business with one party under the belief they are dealing with another party. If the similarity is such as to mislead purchasers or those doing business with the company, acting with ordinary and reasonable caution, or if the similarity is calculated to deceive the ordinary buyer in ordinary conditions, it is sufficient to entitle the one first adopting the name to relief. Id. In determining whether trade name confusion exists or is likely to arise, a court may consider, inter alia, these factors: (1) the degree of similarity in the products offered for sale; (2) the geographic separation of the two enterprises and the extent to which their trade areas overlap; (3) the extent to which the stores are in actual competition; (4) the duration of use without actual confusion; and (5) the actual similarity, visually and phonetically, between the two trade names. See id.
In considering these factors, I note the applicable standard of review: In an appeal of an equitable action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Reichert v. Rubloff Hammond, L.L.C., 264 Neb. 16, 645 N.W.2d 519 (2002).
Degree of Similarity Between Products Offered for Sale.
Both parties offer mortgage lending. Equitable Building and Loan offers, among other things, conventional loans, and although it does not offer subprime loans, it has a process of referring those loans to other financial institutions, for which it sometimes receives a referral fee. Equitable Mortgage offers mostly subprime loans, but also offers conventional loans. Therefore, in my opinion, the products offered for sale in the mortgage lending area by both parties are very similar.
*869 Geographic Separation.
Equitable Building and Loan operates within a 50- to 60-mile radius of Grand Island. Equitable Mortgage’s trade area extends throughout Nebraska, Missouri, Iowa, and South Dakota, with future business anticipated in Kansas. Both parties have offices in Grand Island, with their main offices located one and a half blocks apart. Thus, Equitable Mortgage’s trade area overlaps the entirety of Equitable Building and Loan’s trade area, and the geographic separation of the parties, at least in the Grand Island area, is very small.
Extent of Actual Competition.
Both parties do mortgage lending in the same geographical area. Equitable Building and Loan offers conventional loans and refers subprime loans out to other financial institutions, for which it sometimes receives a referral fee. Equitable Mortgage offers mostly subprime loans, but also offers conventional loans. In fact, in 2000, 26 percent of the loans closed by Equitable Mortgage were conventional loans. Thus, in my opinion, both parties have a high degree of actual competition, which I believe is further borne out by the following testimony: Olson, vice president of Equitable Mortgage, testified that both parties share the same customers. Tracy, office manager for Equitable Mortgage’s Grand Island office, testified that both parties offer home loans and home equity loans. Further, the vice president and chief lending officer of Equitable Building and Loan testified that about 75 percent of Equitable Building and Loan’s business consists of mortgage loans.
Duration of Use of Name Without Actual Confusion.
The evidence adduced at trial established that since February 2000, when Equitable Mortgage’s Grand Island office opened, and continuing until the time of trial, telephone calls intended for one party were placed to the other party; mail and packages intended for one party, even though properly addressed, were delivered to the other party; and customers entered the wrong business office. Kersten, a loan officer with Equitable Building and Loan, testified that on two or three occasions, he had had members of the general public call him and ask “if we were the Equitable downtown that’s always been here” or “the other *870company.” It is my opinion that this evidence exhibits the substantial likelihood that those doing business with the company, acting with ordinary and reasonable caution, will be misled and that the similarity is likely to deceive an ordinary customer in ordinary conditions.
The majority states: “It appears that some of the confusion in the record arises because Equitable Building and Loan began using only the word ‘Equitable’ in its advertising and communication with the public.” However, the evidence establishes that in late 1998 or early 1999, Equitable Building and Loan began identifying itself as “Equitable” in advertising and through its greeting upon answering incoming telephone calls. This identification by Equitable Building and Loan as “Equitable” began at least 1 year before Equitable Mortgage opened its office in Grand Island in February 2000.
Further, even though Equitable Building and Loan had only recently begun to emphasize the trade name “Equitable” in its advertising, it had spent well over 100 years and a considerable amount of money establishing itself as the “Equitable” in the Grand Island area and making it synonymous with real estate mortgages. Equitable Building and Loan has an extensive advertising budget and advertises widely to the public through the yellow pages, newspapers, billboards, radio, and other media, whereas Equitable Mortgage utilizes yellow pages advertising and direct marketing to financial professionals, seeking customer referrals. A real estate agent testified that in approximately late 1999 or early 2000, “the established name for ‘Equitable’ was Equitable Building and Loan.”
The majority emphasizes that “many of the ‘confused’ individuals were professionals who have presumably corrected their initial confusion between the parties.” One of the professionals who encountered confusion was the current president of Equitable Building and Loan, who was employed by another bank when Equitable Mortgage’s Grand Island office opened. He testified that “when [Equitable Mortgage] first came out, I had ... a question but as a member of the financial community, I was able to discern the difference.” Additionally, there was evidence that the names of the parties caused confusion among attorneys and real estate agents.
*871In my opinion, the fact that professionals were confused by the two “Equitable” mortgage lenders in the Grand Island area is extremely probative of the likelihood that confusion may lead parties to conduct business with one party under the belief they are dealing with another party. If professionals, who deal with the mortgage companies on a daily, weekly, or monthly basis are confused, then how likely is it that an “average Joe” who may only deal with one of the companies once every several years will be confused?
Finally, the majority contends that “[t]here is nothing in the record to suggest that Equitable Mortgage had any intent, when it opened an office in Grand Island, to capitalize on the name recognition established by Equitable Building and Loan.” While the initial intent to capitalize on the name recognition may not have been present, in my opinion, the persistence of Equitable Mortgage in continuing to hold itself out as “Equitable” indicates that the trade name is of some value to it. See Riggs Optical Co. v. Riggs, 132 Neb. 26, 270 N.W. 667 (1937).
Similarity of Trade Names.
Finally, I consider the similarity between the trade names. The district court found that Equitable Building and Loan’s use of the trade name “Equitable” should be protected. Equitable Mortgage likewise began holding itself out under the trade name “Equitable” at least 1 year after Equitable Building and Loan did so. Therefore, the trade name which is the subject of the district court’s order of injunction is identical.
CONCLUSION
In sum, after conducting a de novo review of the factual questions and giving weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another, it is my opinion that when considering the factors enunciated by the Nebraska Supreme Court for determining whether trade name confusion exists or is likely to arise, each of the factors — the degree of similarity in the products offered for sale, the geographic separation of the two enterprises and the extent to which their trade areas overlap, the extent to which the stores are in actual competition, the duration of use without actual *872confusion, and the actual similarity between the two trade names — is resolved in favor of Equitable Building and Loan.
Therefore, in my opinion, Equitable Building and Loan has established that actual confusion has occurred by Equitable Mortgage’s use of the name “Equitable” in the Grand Island area. Therefore, I would affirm the district court’s injunction prohibiting Equitable Mortgage from using the name “Equitable” in connection with its business.