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Libman Co. v. Vining Indus. - 69 F.3d 1360 (7th Cir. 1995)


A plaintiff cannot prove infringement of its trademark without proving that consumers are likely to be confused about the source of defendant's products -- and to think that they are plaintiff's. The Lanham Act, 15 U.S.C.S. § 1114(1)(b). A trademark is not a property right, but an identifier; so, provided no one is likely to be confused by the alleged infringer, there is no impairment of the interest that the trademark statute protects.


In 1993, The Libman Company (Libman) succeeded in registering with the U.S. Patent and Trademark Office a trademark that consists of a color scheme in which one vertical band or segment of bristles was a different color from the remaining bristles. The particular choice of contrasting colors was not part of the trademark, however. Libman had begun marketing these brooms in 1990. The brooms sold well. In 1993, Vining Industries (Vining) began marketing its own contrasting-color broom, the contrasting colors being light and medium gray. Subsequently, Libman brought suit against Vining for infringement of a federally registered trademark on a broom. After a bench trial, the district judge enjoined Vining from selling the infringing line of brooms and in addition awarded Libman almost $1.2 million in monetary relief, representing Vining's profits from that sale. On appeal, Vining argued that the district judge committed clear error in finding that consumers were likely to mistake Vining’s broom for Libman’s.


Was there likelihood of confusion between the brooms of Vining and Libman, thereby justifying the award of damages in favor of Libman?




The Court of Appeals for the Seventh Circuit held that there was insufficient evidence of consumer confusion to support the verdict. Due to the appearance and packaging of the brooms, there was no likelihood of confusion at the point of sale. Further, Libman offered no evidence that consumers might become confused as to source post-purchase, which would carry over to future purchases. The Court found no evidence of bad faith on the part of Vining to confuse consumers as to source. According to the Court, Libman presented no consumer surveys or other evidence to support a likelihood of confusion. Therefore, the Court held that the district court committed clear error in concluding that consumers were likely to mistake Vining’s broom for Libman’s, and reversed with instructions to enter judgment for Vining.

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