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FCOA LLC v. Foremost Title

FCOA LLC v. Foremost Title

United States Court of Appeals for the Eleventh Circuit

January 12, 2023, Filed

No. 19-13390

Opinion

 [*942]  Tjoflat, Circuit Judge:

In this trademark infringement case, we must decide whether the parties' FOREMOST trademarks at issue could confuse consumers into thinking that a relationship exists between the parties. Here, the District Court found at summary judgment that there was no likelihood of confusion  [*943]  (and thus no trademark infringement) between the FOREMOST marks of Foremost Insurance Company ("FIC"), a multi-billion dollar insurance company which for 70 years has sold many different lines of insurance, and Foremost Title and Escrow ("FT&E"), a shell company set up to sell title insurance for a law firm. After reviewing the record and with the benefit of oral argument, we disagree [**2]  with the District Court's likelihood of confusion analysis and thus reverse the Court's grant of summary judgment on FIC's trademark infringement claim.1

In 1952, FIC was founded and started using FOREMOST-branded marks to market and sell its insurance products. After FIC operated independently for several decades, Farmers Insurance Group acquired FIC in 2000. Now a subsidiary of Farmers, FIC continues to sell insurance in the United States and Florida under its FOREMOST-branded marks.2

In total, FIC owns 21 registered trademarks with the word "Foremost." On its website, FIC displays a FOREMOST mark in the following way:

FIC also uses its FOREMOST marks on its online advertisements, social media, emails, magazines, and brochures. From 2011 to 2017, FIC spent an average of $6,765,627 per year to advertise and promote its FOREMOST marks. Moreover, the American Association of Retired Persons ("AARP") endorsed FIC in 1989. Thus, FIC also advertises to AARP members using its FOREMOST marks through AARP's website, email and mailing lists, and the AARP magazine. AARP has 2.7 million Florida members; of these, FIC sent FOREMOST-branded emails or mail solicitations to over 120,000 AARP members [**3]  in 2016 and 2017. Additionally, FIC's independent insurance agents often use the FOREMOST marks in their own marketing.

FIC has issued over 3 million FOREMOST-branded insurance policies nationwide, including homeowners' insurance, property insurance, fire insurance, business building insurance, landlord insurance, and mobile home insurance. In Florida alone, FIC has over 95,000 customers. FIC primarily sells its insurance policies through its over 33,000 independent agents at 77,000 locations. FIC generated over $2 billion in insurance premiums nationwide in 2017, of which $80 million came from Florida policies. However, one thing FIC does not offer is title insurance. Under Florida law, entities that issue title insurance are prohibited from selling any other type of insurance, and vice versa. Fla. Stat. § 627.786.3

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57 F.4th 939 *; 2023 U.S. App. LEXIS 788 **; 29 Fla. L. Weekly Fed. C 2124

FCOA LLC, Plaintiff-Appellant, versus FOREMOST TITLE & ESCROW SERVICES LLC, Defendant-Appellee.

Prior History:  [**1] Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:17-cv-23971-KMW.

FCOA, LLC v. Foremost Title & Escrow Servs., LLC, 416 F. Supp. 3d 1381, 2019 U.S. Dist. LEXIS 226167, 2019 WL 7790857 (S.D. Fla., July 31, 2019)

Disposition: REVERSED AND REMANDED.

CORE TERMS

marks, consumers, district court, FOREMOST, likelihood of confusion, summary judgment, title insurance, advertising, circumstantial, similarity, customers, parties, overlap, sophistication, trademark, confused, products, reasonable factfinder, third-party, non-movant, customer base, conducting, channels, sellers, argues, summary judgment motion, trademark infringement, purchasers, unsophisticated, homeowner's

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Appellate Review, Standards of Review, Judgments, Entitlement as Matter of Law, Appeals, Standards of Review, De Novo Review, Genuine Disputes, Evidence, Inferences & Presumptions, Inferences, Business & Corporate Compliance, Causes of Action Involving Trademarks, Infringement Actions, Determinations, Trademark Law, Burdens of Proof, Registration Procedures, Federal Registration, Degree of Protection, Unfair Competition, Federal Unfair Competition Law, Lanham Act, Defenses, First Use, Consumer Confusion, Circuit Court Factors, 11th Circuit Court, Factors for Determining Confusion, Similarity of Marks, Commercial Impressions, 3rd Circuit Court, 2nd Circuit Court, 4th Circuit Court, 6th Circuit Court, Subject Matter of Trademarks, Eligibility for Trademark Protection, Strength of Trademark, Intent of Defendant to Confuse, Inferred Intent, Distinctiveness, Evidence of Distinctiveness, Terms With Inherent Distinctiveness, Suggestive Terms, Terms Requiring Secondary Meaning, Descriptive & Laudatory Terms, Definition of Descriptive Terms, Determinations of Protectability, Genericness, Appearance, Meaning & Sound, Meaning, Trademark Cancellation & Establishment, Incontestability, Effects, Types of Evidence, Circumstantial Evidence, Likelihood of Confusion, Surveys as Evidence of Confusion, Presumptions, Rebuttal of Presumptions, Relationship of Goods, Comparison of Advertising, Appellate Briefs, Reviewability of Lower Court Decisions, Preservation for Review, 9th Circuit Court, Motions for Summary Judgment, Cross Motions, Legal Entitlement