Libman Company v. Vining Industries, Inc.
69 F.3d 1360 (1995)
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Rule of Law:
A finding of trademark infringement based on likelihood of consumer confusion cannot be sustained by a speculative narrative alone; it must be supported by some evidence demonstrating that a significant number of consumers are likely to be misled.
Facts:
- In 1990, The Libman Company (Libman) began marketing and selling brooms featuring a vertical band of bristles in a color that contrasted with the rest of the bristles.
- In 1993, Libman successfully obtained a U.S. federal trademark registration for its contrasting color band design on brooms.
- Libman's brooms sold well, establishing a presence in the market.
- In 1993, Vining Industries (Vining) began marketing its own line of brooms that also featured contrasting color bands on the bristles, using different shades of gray.
- Both companies' brooms are inexpensive, low-consideration items for consumers.
- At the point of sale, the brooms are sold with wrappers around the bristles; Vining's wrapper has a large, opaque label that substantially obscures the contrasting color feature.
- The two brands of brooms are rarely sold by the same retail outlet.
Procedural Posture:
- The Libman Company sued Vining Industries in federal district court for trademark infringement.
- Following a bench trial, the district court judge found that Vining had infringed Libman's trademark.
- The district court issued an injunction against Vining and awarded Libman nearly $1.2 million, representing Vining's profits from the sale of the brooms.
- Vining Industries, the defendant, appealed the judgment to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does a competitor's sale of a broom with a contrasting color bristle design create a likelihood of consumer confusion sufficient to constitute infringement of a registered trademark for that design, where there is no evidence of actual confusion or misleading packaging at the point of sale?
Opinions:
Majority - Posner, Chief Judge
No. Vining's sale of its broom does not create a likelihood of consumer confusion sufficient to constitute trademark infringement. To establish infringement, the trademark holder must prove a likelihood of confusion, which cannot be based on pure conjecture or a narrative alone. In this case, the evidence of likely confusion is 'vanishingly thin.' There was no evidence of actual confusion, such as consumer testimony or surveys, despite the sale of several hundred thousand Vining brooms. At the point of sale, the brooms are not confusingly similar due to different packaging, prominent brand names, and Vining's label obscuring the key feature. The theory of post-sale confusion—where a consumer might be confused upon unwrapping the broom at home, thereby influencing a future purchase—is a hypothesis that lacks any evidentiary support. Furthermore, Vining's adoption of the design was not bad faith intended to deceive, but rather legitimate competition by emulating a popular product feature.
Dissenting - Coffey, Circuit Judge
Yes. Vining's sale of its broom does create a likelihood of consumer confusion, and the district court's finding to that effect should be affirmed. The majority improperly disregards the 'clearly erroneous' standard of review, which requires significant deference to the trial court's factual findings, including the ultimate finding of likelihood of confusion. The majority also erroneously elevates the 'actual confusion' factor above the other six factors in this circuit's established multi-factor test. Precedent is clear that proof of actual confusion is not required, especially for low-cost, impulse-buy items like brooms where consumers are unlikely to report their confusion. The district court properly applied the seven-factor test, and its conclusion was a plausible view of the evidence that an appellate court should not overturn simply because it would have weighed the evidence differently.
Analysis:
This case clarifies the evidentiary burden for proving 'likelihood of confusion' in trademark law, particularly for theories of post-sale confusion. The court signals that while direct evidence of actual confusion is not strictly required, a plaintiff cannot prevail on a plausible but entirely unsubstantiated narrative. The decision emphasizes the distinction between copying a feature to trade on a competitor's goodwill (infringement) and copying a functional or aesthetically pleasing feature to compete in the market (permissible competition). This raises the bar for plaintiffs in cases where point-of-sale confusion is weak and the protected mark is on a 'thin' or commonplace design feature.
