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Keywords

plaintiffmotionsummary judgmenttrademarkgood faithmotion for summary judgment
lawsuitplaintiffdefendantmotionsummary judgmentadoptiongood faithmotion for summary judgment

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W.W.W. Pharmaceutical Co., Inc. v. Gillette Co., Not Reported in F.Supp., 1989 WL 206492, 14 U.S.P.Q.2d 1333

Facts

Gillette moved for summary judgment against W.W.W. Pharmaceutical regarding the use of the mark 'SPORT STICK'. The dispute centers on whether Gillette's use of the mark is likely to cause confusion among consumers. W.W.W. argues that the question of confusion is a factual issue that should be determined by a jury, while Gillette contends it is a question of law. The court found that there are significant factual disputes regarding the strength of the mark, the proximity of the products, and the intent of both parties.

Among these disputed factual issues are assessment of the strength of the plaintiff's mark, the nature of the proximity of plaintiff's lip pomade and defendant's deodorant in retail establishments and other channels of commerce; the identity and scope of the targeted consumer group(s) to which each product is merchandised; and the asserted existence of bad or good faith in each party with respect to the adoption and use of its mark or its conduct of the lawsuit.

Issue

Is Gillette's use of W.W.W.'s mark 'SPORT STICK' likely to cause confusion among consumers?

Whether Gillette's use of W.W.W.'s mark 'is likely to cause confusion, or to cause mistake, or to deceive.'

Rule

The court applies the standard that summary judgment is only appropriate when there is no genuine dispute of material fact. The likelihood of confusion is a factual question that must be resolved by a jury, particularly when subjective issues such as good faith are involved. The court also notes that the existence of an incontestable trademark right complicates the summary judgment process.

If W.W.W. Pharmaceutical, the party opposing summary judgment, 'generates uncertainty as to the true state of any material fact,' summary judgment is not available.

Analysis

The court analyzed the facts surrounding the use of the mark and determined that there are disputed issues regarding the strength of the plaintiff's mark and the proximity of the products. The court emphasized that subjective issues, such as good faith, are inappropriate for summary judgment. Given that W.W.W. has an incontestable trademark, the court could not grant summary judgment in favor of Gillette.

We further find that the record raises disputed issues of fact with respect to application of our Circuit's polaroid factors.

Conclusion

The court denied Gillette's motion for summary judgment, concluding that the question of likelihood of confusion must be resolved by a jury.

Accordingly, Gillette's motion for summary judgment is in all respects denied.

Who won?

W.W.W. Pharmaceutical prevailed in this case as the court denied Gillette's motion for summary judgment. The court found that there were significant factual disputes regarding the likelihood of confusion, which is a question that must be determined by a jury. The presence of an incontestable trademark held by W.W.W. further complicated Gillette's position, as it indicated a strong legal standing against the claims made by Gillette.

W.W.W. Pharmaceutical prevailed in this case as the court denied Gillette's motion for summary judgment.

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