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Keywords

plaintiffdefendantappealsummary judgmenttrademark
summary judgmenttrademark

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Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 74 U.S.P.Q.2d 1621, 05 Cal. Daily Op. Serv. 3705, 2005 Daily Journal D.A.R. 5081

Facts

Deptula, the owner of the 'Surfvivor' trademark for beach-themed products, sued the producers of the 'Survivor' television show for trademark infringement, claiming that their use of a similar mark on various merchandise caused consumer confusion. The District Court for Hawaii granted summary judgment in favor of the 'Survivor' producers, leading to an appeal by Deptula. The court found that there was no likelihood of confusion between the two marks, as the products were not related and evidence of actual confusion was minimal.

Deptula holds three federal trademarks for the mark 'Surfvivor,' an amalgamation of the words 'surf' and 'survivor.' Deptula has adorned the majority of his Hawaiian beach-themed products, ranging from sunscreen, to t-shirts, to surfboards, with that mark.

Issue

Did the use of the 'Survivor' mark by the television show producers infringe on the 'Surfvivor' trademark owned by Deptula, causing a likelihood of consumer confusion?

Did the use of the 'Survivor' mark by the television show producers infringe on the 'Surfvivor' trademark owned by Deptula, causing a likelihood of consumer confusion?

Rule

To establish a trademark infringement claim under the Lanham Act, a plaintiff must demonstrate that they own a protectable mark and that the defendant's mark is similar enough to cause confusion among consumers. The 'likelihood of confusion' is assessed using several factors, including the strength of the marks, relatedness of the goods, similarity of the marks, evidence of actual confusion, marketing channels, degree of consumer care, defendants' intent, and likelihood of expansion.

Analysis

In applying the likelihood of confusion test, the court evaluated the Sleekcraft factors. It found that the 'Surfvivor' mark was suggestive and thus entitled to some protection, but the evidence did not support a finding of confusion. The products were not closely related, and the evidence of actual confusion was scant, with only a few instances of mistaken identity reported. The court also noted that the marketing channels slightly overlapped but did not indicate a likelihood of confusion. Overall, the factors weighed in favor of the 'Survivor' producers.

Application of the Sleekcraft factors to the facts of this case does not raise a material issue of fact regarding actual confusion between the Surfvivor and Survivor marks.

Conclusion

The court affirmed the summary judgment in favor of the 'Survivor' producers, concluding that there was no likelihood of consumer confusion regarding the marks.

Because no material issue of fact was raised reflecting confusion between the marks, we affirm the entry of summary judgment in favor of Survivor.

Who won?

The prevailing party in this case was the 'Survivor' producers. The court found that the evidence presented by Deptula was insufficient to establish a likelihood of confusion between the 'Surfvivor' and 'Survivor' marks. The court emphasized that the products were not closely related and that there was minimal evidence of actual confusion among consumers, which ultimately led to the affirmation of the summary judgment.

The court found that the evidence presented by Deptula was insufficient to establish a likelihood of confusion between the 'Surfvivor' and 'Survivor' marks, leading to the affirmation of the summary judgment in favor of the 'Survivor' producers.

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