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To invoke § 43(a) of the Lanham Act, 15 U.S.C.S. § 1125(a), and to warrant injunctive relief, the plaintiff must establish that the defendant's goods are likely to be thought to have originated with, or to have been sponsored by, the true owner of the mark. Plaintiff must demonstrate that the false representations, if any, have a tendency to deceive. A showing of the likelihood of customer confusion as to the source of the goods is sufficient. And under 15 U.S.C.S. § 1114(1), recovery by the holder of a registered mark is predicated upon a showing of confusion, mistake or deception in the use of any colorable imitation of the mark.
Plaintiff Girl Scouts of the United States of America was a nonprofit, nonpolitical, nonsectarian character-building organization open to girls from seven through seventeen years of age. Its purpose was to promote the virtues of truth, loyalty, purity and patriotism, and its present membership exceeds 3,750,000 people, including 600,000 adult leaders. Defendant, Personality Posters Mfg. Co., Inc. was engaged in the printing and distribution of posters of various kinds. For a period of about three months prior to the filing of this action, defendant distributed the poster which was the subject of plaintiff’s complaint. Plaintiff then moved for a preliminary injunction enjoining the defendant from various acts which included printing, distributing and selling a poster produced by the defendant using the plaintiff’s trademarks, or components thereof, or insignia, emblems or badges.
Should the plaintiff’s motion for a preliminary injunction enjoining defendant from using its trademark in the distribution and sale of its poster be granted?
The court denied the motion. The court found plaintiff failed to establish a claim under § 43(a) of the Lanham Act, 15 U.S.C.S. § 1125(a), because plaintiff failed to show a likelihood of confusion. The court explained that customer indignation regarding the offensive nature of the poster was not the same thing as confusion. Further, the federal statute incorporating plaintiff did not protect it from trademark violations, it only protected it from competitors. The court also held that with respect to plaintiff's state law claims, the court found the dilution doctrine applied when confusion had been shown. Further, there was no evidence of fraudulent intent on the part of defendant, and no evidence of defamation. In addition, the court found the state law prohibiting the unauthorized use of trade names or symbols of non-profit organizations was inapplicable.