Fisons Horticulture, Inc., in No. 93-7224 v. Vigoro Industries, Inc., in No. 93-7287

proffer any tending evidence to show that asphyxiation the danger of was obvious. HORTICULTURE, INC., FISONS Appellant 93-7224, in No. negligence Under a theory, although a fail- may ure to claim v. warn be if defeated the risk known, was obvious or question of obvi- INDUSTRIES, INC., VIGORO ousness is properly more to jury submitted Appellant in No. 93-7287. disposed than on motion summary judg- 93-7224, Nos. 93-7287. Sears, Laaperi ment. See Roebuck & (1st 726, Cir.1986) (whether United States Appeals, Court of danger of smoke detector’s malfunction was Third Circuit. question jury); obvious is Mucowski v. Argued Clark, Jan. Pa.Super. 197, 590 A.2d (1991) (whether warning absence of legal is July Decided injury cause of usually is matter for trier of fact; may decide where rea-

sonable plaintiffs conclusion is that foolhardi- ness, warning, not lack of legally inju- caused

ry). The court’s role in deciding a motion for

summary judgment merely to decide genuine

whether there is a issue of material

fact for trial. The district court’s dismissal

of Metzgar’s negligent claim on the basis of

its determination that danger to Matthew

was obvious was tantamount to holding that jury

no reasonable could conclude otherwise. record,

Based on the evidence we cannot

agree.

V.

We will vacate and portion remand that summary district court’s judgment order

of September 1993 which disposes of the

plaintiffs’ failure to brought warn claims

negligence liability. and strict willWe also

vacate portion of the district court’s

summary judgment order of September disposes plaintiffs’ which defec-

tive design brought claims in negligence and

strict liability, and remand for trial on the

merits complaint. by selling fertilizer under unfairly

competed “Fairway Green.” the name (“Fisons”), Horticulture, a Ca- Inc. place of principal with its corporation nadian Bellvue, brought Washington, business (“Vi- Industries, against this suit prin- corporation with goro”), a Delaware Heights, in Fairview of business cipal place Fisons, peat moss markets which Illinois. “Fairway”, under the “Fair- name of the brand Vigoro’s use claims trade- fertilizer constitutes way for Green” competition2 and unfair infringement1 mark Act, §§ 1051- 15 U.S.C. Lanham under the 1992), infringement (1988 Supp. TV trademark, law common law aof common Willcox, Piroz- (argued), R. Pirozzolo Jack Delaware and violates the competition, unfair MA, F. Boston, Donald McCarthy, &zolo Act, Del.Code Practices Deceptive Trade Nichols, Tun- Morris, Arsht & Parsons, Jr., (1993). 6, §§ 2531-33 Ann. tit. DE, appellant/cross-ap- nell, Wilmington, for trial, court en- the district a bench After Horticulture, Inc. Fisons pellee claims Vigoro on for Fisons’ judgment tered C. (argued), Michelle Gregory L. Byron for Vigoro’s on cross-claim Fisons and for Chicago, Emery, McDermott, & Burke, Will 1114(1), § as under 15 U.S.C. attorneys’ fees Vigoro In- IL, appellee/eross-appellant for parties § 1117. Both by 15 provided U.S.C. dustries, Inc. follow, will For reasons appealed. judgment Vi- district court’s reverse GARTH, SCIRICA, LEWIS Before claims, affirm Act Lanham goro on Judges. Circuit fees, attorneys’ on for Fisons judgment trial. for a new and remand COURT THE OF OPINION SCIRICA, Judge. Circuit I. infringement case con- is a trademark This Horticulture, Fairway Inc. and A. Fisons gar- lawn and in the home

cerning products Moss Peat trademark owner of market. The den subsidiary a British-owned Fisons is alleges another peat moss “Fairway” for PLC, three divi- Fisons, has which company, the mark right to infringed its company who, (a)(1) connection Any person on or in Act, 15 U.S.C. the Lanham 32 of Section 1. services, any container or 1992) any goods or regis- (1988 protects with Supp. IV & § 1114 word, term, any goods, uses in commerce part: provides in for name, tered trademarks device, any combination symbol, or or shall, consent Any person without who origin, thereof, designation false any or false registrant' —(cid:127) fact, or or false misleading description of or any reproduction, (a) coun- in use commerce fact, which— representation of misleading regis- terfeit, of a copy, or colorable imitation confusion, cause sale, (A) or to likely to is cause offer- with in connection mark tered affiliation, mistake, distribution, any advertising as to the sale, or to deceive or ing for connection, person with such or connection or association in or services origin, ... person, as to or to cause another use is which such goods, her approval his or sponsorship, services, by another activities or commercial registrant by the civil action in a shall be liable person, ... provided. hereinafter the remedies Act, 43(a) 15 U.S.C. of the Lanham Section person any by action in civil be liable 1992), shall (1988 provides Supp. which & IV § 1125 likely to be is or or she is that he believes who unregistered registered and protection both damaged such act. marks, part: in states pharmaceuticals, equipment, sions: scientific consumer fertilizer market. pro- One of the products. and horticultural Its posed horticulture trademarks for the national fertilizer companies division has King- United brand Fairway. is dom, France, Countries, the Benelux as Fairway peat moss is sold in plas- a white well inas North America. bag tic with the “Fairway” large sphagnum Fisons markets Canadian peat script green letters above “peat the words moss, organic product a natural used to im- moss” in block red letters. bag has a prove protect plants soil texture and from central design golf of a green course sur- extremes, temperature registered under the rounded pin roses. A with a red triangu- “Fairway” in the United flag States. lar appears in the center of green, acquired Fairway trademark in and the “sphagnum” printed word white owner, original 1980 from the Western Peat flag. On the back of the package, Ltd., Company, which first used the trade recommended uses are listed “preparing name in 1959 and it in lawns,” new “top dressing lawns,” old “garden soil mix or package mulch.” The is not name under which peat notes that moss is used with fertilizer moss; Fisons sells it also uses the and that it “saves fertilizer”.

names “Sunshine” and “Parkland.” Sun- together shine and Parkland account for over Vigoro Industries, B. Inc. Fairway and 95% of its sales the United States and Green Fertilizer Fairway accounts for the remainder.3 Fi- peat sons’ three of brands moss account Vigoro for Industries has been in the fertilizer peat about of the 25% U.S. moss market. business in 1890, the United States since and 1991, through From 1987 Fisons sold Vigoro over the name has products been used on $500,000 Fairway peat of year. moss each since 1924. prominent It is a name in the Fairway peat Fisons sells primarily industry moss to plans it and compete to with the garden homeowners for lawn and leader, care market O.M. Scott & Sons across through the traditional range channels —lawn and the full products. Scott Vigoro sells stores, garden stores, hardware products home im- its to through consumers garden centers, provement supermarkets, centers, drug stores, discount stores, hardware stores, and discount stores. Fisons stores, does not seed and feed improvement home Fairway peat directly advertise moss to con- centers supermarkets drug stores. Instead, promotes sumers. it product its to 1991, Before Vigoro qual- offered standard retailers, advertising copy makes available to ity consumers, fertilizer to 1991, but in it them, and reimburses them their for adver- decided to offer to upscale the consumer tising expenses.4 market a new line of premium-quality fertil- moss, selling peat Besides izers, Fisons sells to containing patented slow-release greenhouse the U.S. mixes; market potting nitrogen ingredient it premium used in its analyses soil, water samples; and tissue golf course Vigoro fertilizer. hired an adver- professional fertilizer. It also tising offers an agency help to select a pro- name and garden extensive line lawn and products in motional program for product. the new Af- Canada. Fisons has been considering ex- ter a search many disclosed that proposed panding product line in the United States names registered were as trademarks oth- by acquiring regional fertilizer brands and er companies, agency recommended unifying them aas national brand for “Fairway Green.”5 3. It is $684,316, for uncommon one business to use published one retailer an ad- multiple brand essentially names for what is Fairway; vertisement sought it reimburse- product; same $1,232.57. use of different brand names ment for peat allows Fisons sell moss to a lawn and garden store a under brand name not sold explored 5.One Vigoro's the names new nearby competing discount outlet. Green,” line of was fertilizers ‘‘Golf Course advertising agency's attorney trademark 1990, year But in in which Fisons had retail subsidiary found that a of Sandoz Pharmaceuti- sales of Fairway moss in 17 Corporation states for a total cal owned the named "Golf” for relating to “Fairway” and services counsel stated trademark agency’s The by surveys of gardens, as shown reg- “Fairway” lawns that her recommendation telephone books. companies: by several as a trademark istered discussed, possibility is a there weAs Fair- May, Vigoro on the decided “fair- owners of one or more name. It filed its trademark way Green right to Vigoro’s might contest

way” marks May on 1991 and introduced application However, since GREEN. use FAIRWAY line at the National Hard- new users any prior history of is no there August, The Hardware ware Show “fairway,” uses each other’s opposing notice Fisons had was the first Show acceptably] low. should be the risk “Fairway of the name Green.” Vigoro’s use application that the $500,- a risk June, 1992, spent There is also Vigoro over By had who will assigned to examiner an and had advertising promotion will be on one position Fairway [sic] and site a strict take million of approximately $1.3 sold “fairway” registrations prior protest- more in 33 Fisons states. Green your refusing register grounds for trade- attempt register Vigoro’s ed “fairway” marks many so September mark. Because and filed suit past I believe in the January Chancery have been Court in Delaware is also low. 1992; this risk States Vigoro removed it United District Court. Indus., Horticulture, 1993). (D.Del. 92-66, Mar. slip op. at 3 No. heavy is sold Green fertilizer bag registrations background color of paper bag. several There were “Fairway,” red, magenta, depending purple or including green, the word applications of the fertilizer the same of four varieties of them were in on which but few is, bag large Fairway, U.S. front is a On the as Fisons’ contains. category class, purple rectangle West- in white on 10, yellow In that that has “Fertilizers.” class top registered “Vigoro” at the and “Premium Peat, had predecessor, the words ern Be- just and O.M. the middle. in 1960 below “Fairway” peat for moss Lawn Fertilizer” Fairway” two, with larger green for letters registered “Super these had tween Scott borders, the words are yellow highlighting fertilizers and horticultural agricultural “Fairway” Super “Fairway The word marketed Green.” 1988. O.M. Scott “Green,” in the use. After and not consumer the word but arches over for commercial “Fairway containing golf a green golf a course applied registration arch is Vigoro flag. 1991, triangular May, ball, pin with red cup, and a for its fertilizers Green” yellow green and application golf O.M. course Behind contested both package applied rays. for its On registration setting and sun with blue prior Scott’s green longer “Keeps grass “Fairway” fertilizer. is the statement: registration own compared with clippings when fewer registra- trademark In addition these the controlled- Contains fertilizers. soluble in U.S. trademark applications tions top of America’s nitrogen on 70 used release had 10, companies approximately six class Environmentally-oriented, golf courses. “Fair- trying register were registered or without nitrates.” formulated products way” for one or more gardens: grass related to lawns services the Products Use Purchase and C. equip- machinery and seed, garden lawn and Fairway Green Fairway peat moss and services; ment, only three such but and lawn segment of occupy the same at fertilizer completed and active were registrations market, the “fertil- garden lawn and survey Others were made. the time the was They fre- segment. are Finally, conditioner” or had been abandoned. pending izer/soil prepare the soil together to quently used of the name unregistered uses there were request of Vigoro similar ap- made no the name. The trademark and herbicides. fertilizers inactive, “Fairway” trade- Vigoro requested any of a other owners peared so Fisons or to be royalty-free “Golf Course Green.” license to use mark. refused, Vigoro use decided not to When it peat may the use moss cut planting, requirements, The first two validity fertilizer, down the use of as noted on the legal where, protectability, proven Fairway peat package. prod- moss The two here, federally registered a mark was items,6 and ucts are both low-cost there was has become “incontestible” under the Lan testimony that consumers who use these Act, §§ ham 15 U.S.C. 1058 and 1065.7 Ford spend very products typically little time de- Co., (citing Opticians 930 F.2d at 291 buy. ciding product which Peat moss and Ass’n, 194). 920 F.2d at If has not garden lawn and fertilizers are often dis- federally registered or, been registered, if stores, played in the same area and both incontestability, validity has not achieved de target who do homeowners their own lawn pends proof secondary meaning, unless garden work. A number of other com- unregistered inherently mark is distinc panies selling garden products, lawn and in- tive. Ford Motor at (citing leader, Scott, cluding the market O.M. sell Honickman, A.J. Co. v. 808 F.2d Canfield fertilizer; both moss and sells (3d Cir.1986)). The mark in this bark mulch as well as fertilizer. case is both and incontestible. II. plaintiff A prove must also the third protects “The law of trademark requirement, the likelihood of trademark in the owners exclusive use of which exists viewing “when the consumers their marks when use another would be the mark probably assume that Interpace Carp, cause confusion.” product represents or service it is associated (3d Inc., Cir.1983); v. Lapp, 721 F.2d with the source of a different see, Ford Motor Co. v. Summit Motor Prod service identified a similar mark.” Dranoff-Perlstein ucts, Inc., (3d Cir.), 930 F.2d 291-93 Sklar, c. v. — Asso denied, U.S. -, 373, 116 cert. 112 S.Ct. (3d Cir.1992) (internal quotations omit (1991), L.Ed.2d 324 and authorities cited ted). “Proof of actual confusion is not neces therein; Paper Liquid Scott Co. Scott’s sary; likelihood of confusion is all that need Gold, 1228-29 Cir. be shown.” Ford Motor 930 F.2d at 292 1978). prove infringement, To (internal omitted).8 citations showing (1) plaintiff must show that: the mark is proof plaintiff require must make for this legally protectable; valid and the mark is depends ment goods whether the or ser (3) by plaintiff; owned the the defen vices offered the trademark owner and identify goods dant’s of the mark to use or alleged infringer the competi are in direct likely services to create is confusion concern tion. ing goods “Where the origin the of the or trademark owner services. Ford and the alleged infringer (citing Opticians 930 F.2d at 291 deal in competing goods or services, Independent Opticians Ass’n America v. the rarely beyond court need look of America, (3d Cir.1990)). 920 F.2d the mark Lapp, itself.” 721 F.2d at 462 of bag Fairway peat A 4 plaintiff sion; cubic foot of a provide proof moss has need not of actual confu $15.00; price approximately retail of $8.00 only he need show — likelihood of confusion. pound bag 20-25 Green fertilizer has Ford Motor 930 F.2d at 292. In an action $15.00, price approximately a retail $8.00— 43(a) brought part under another of section with discounts and rebates. the advertising, Lanham Act for false 15 U.S.C. 1125(a)(1)(B), § plaintiff prove need not the chal 7. A trademark becomes incontestable after the lenged advertising public misled the if he can stating owner files affidavits that the mark has However, literally show it was false. if his claim registered, been that it has been in continuous advertising is not that the was false but that it years, use for five consecutive and that there is misleading, prove was public he must the was pending proceeding no and there has been no actually misled or confused it. Johnson & concerning registrant’s adverse decision the Johnson-Merck Consumer Pharmaceuticals Co. v. right ownership registration. or Pharmaceuticals, Rhone-Poulenc Rorer 19 F.3d brought 8. Some actions under the Lanham Act (3d Cir.1994); 129-30 Pharmaceuti Sandoz require proof of actual confusion and do others Richardson-Vicks, Inc., Corp. cals brought not. In an action under sections 32 and (3d Cir.1990). 228-29 43(a) infringe- of the Lanham Act for trademark ment, 1114(1) 1125(a)(1)(A), §§ 15 U.S.C. (3) goods and other factors omitted). price of the on the the (citations court focuses expected of the care and attention they “con- indicative are whether marks to determine Floors, making purchase; when Inc. v. consumers Country fusingly similar.” Cir.1991). 1056, 1063 Gepner, 930 (4) has length of time the defendant the compet- not or services are goods the Where of actual used the without evidence is one of similarity the marks ing, the arising; examine court must factors the number of (5) adopting of the defendant the intent of confusion. likelihood to determine mark; the confusion where likelihood of To determine confusion; (6) of actual the evidence deal non- and defendant plaintiff the (7) though compet- goods, the whether services, goods or the competing through the same channels ing, are marketed to the beyond the trademark look must through same of trade advertised the themselves, and to the nature of media; marketed in which the context (8) relationship be- targets The closer to which and sold. extent same; similar and the more products, parties’ efforts are tween the sales contexts, greater the likeli- their sales (9) goods in the relationship of the own- a trademark confusion. Once hood of consumers because minds of confu- likelihood of er demonstrates function; and injunctive sion, relief. entitled suggesting that con- facts omitted). (citations Lapp, F.2d at 462 might expect prior owner suming public product in the defendant’s to manufacture is also of confusion Likelihood market, expand into he is 43(a) brought section under test for actions that market. 1125(a)(1)(A) Act, § 15 U.S.C. of the Lanham factors to decide applied these repre prevent false competition to for unfair protection two where an issue trademark origin of to the source or sentations as non- same trademark on parties used the confusingly similar to by a mark or services Lapp competing products. The Division See, e.g., Prod already in use. Sun-Fun one (“Lapp-Inter- Interpace Corporation plaintiff ucts, Develop & v. Suntan Research Inc. insulators un- pace”) made and sold ceramic Cir.1981) (5th Inc., ment trademark. The “Lapp” der the (factors competition claim to unfair relevant Defendant, Lapp, in 1953. “essentially § under 15 U.S.C. marketing arm of a German the U.S. in relevant to trademark same” as those wire, corporation, had distributed cable 1114). § under 15 U.S.C. fringement claim under hardware the U.S. related electrical “Lapp since “Lapp” and Cable” the names the Lan- Under A. Likelihood of Confusion regis- applied for federal 1977 but never had ham Act. Lapp-Interpace sued mark. tration of its Inc., enjoin Lapp, Act to under the Lanham to adopted a ten-factor test haveWe products. on its using “Lapp” name from mar confusion in the likelihood of determine com- court had dismissed the The district eases of place product’s source in ket toas Paper. reading of Scott plaint of its because infringement and unfair alleged trademark reversed, Paper man- holding that Scott We non-compet of a competition by producer Lapp, 721 plaintiff. judgment for the dated F.2d at Dranoff-Perlstein, 967 ing product. F.2d at 462. Co., 293; 862-63; at Ford 463; Paper, F.2d Lapp, 721 F.2d at Scott findings made factual The district They at 1229. are: inquiry, but it did not area of every relevant Paper factors. formally apply the Scott (1) the own- degree between of applied them Lapp, 721 at 463. We mark; alleged infringing and the er’s mark plaintiff. weighed in favor of the they found at that time mark; parties’ sales efforts While strength of the owner’s targets, to the same dinarily, expects junior directed there were not one that the new or likely user of advantage was that clash in the mark will use to its evidence reputation defendant, good future; by will of the senior user previously which had adopting a similar or identical mark. Re- and cable for use electrical com- sold wire verse larger, confusion occurs when a more ponents shipped Europe conforming to powerful company uses the trademark of a European specifications, begun had smaller, powerful less senior owner and manufacture wire and cable that met United thereby causes confusion as to the specifications. “[t]his Stated We noted de- source of the senior user’s or services. considerably velopment increase[d] the over- Sands, Taylor Quaker See & Wood Co. v. lap parties’ potential in the actual and cus- (7th Cir.1992) (Quaker Oats 978 F.2d 947 pool,” at plain- tomer id. and determined Oats Co.’s advertising use “Thirst-Aid” in tiffs ceramic insulators and defendant’s wire infringement Gatorade was closely functionally. and cable were related “Thirsi>-Aid” trademark owned components Both were basic electrical formerly compa- used small Vermont together. were often used ny); Banff, Stores, Dep’t Ltd. v. Federated We concluded customers would find it nat- (marketer Cir.1988) 841 F.2d 486 Lapp ural for the manufacturer of ceramic clothing unregistered women’s trade- pole expand insulators and hardware to into mark enjoin “Bee Blooming- Wear” could cable, Lapp-Interpace wire and intro- using dales from term “B-Wear” in its stores planned just duced evidence to do that. clothes); Ameritech, and on its Inc. v. Amer- We noted: ican Technologies Corp., 811 Information likelihood-of-expansion pivot- factor is (6th Cir.1987) (use by F.2d 960 defendant non-competing products al in eases such as holding company for five midwestern Bell granting this. One of the chief reasons for telephone companies unregistered trade protection trademark owner a market plaintiff, name and mark of a small Ohio protect right someday not his own is to his corporation oils, reclaimed industrial appears enter market. When it might cause plaintiff consumers to assume here, extremely likely, as it does that the subsidiary defendant); Capital Films trademark owner will soon enter the de- Corp. Productions, Inc., v. Charles Fries field, weighs this final fendant’s factor (5th Cir.1980) (reverse F.2d 387 confusion injunctive heavily in favor relief. applied defendants, doctrine could be where omitted). (citation including Broadcasting American Company, purpose Id. We noted the planned produce Harvey movie on analysis Lee the ten-factor was to determine bearing Oswald produced same title as movie likelihood of confusion those eases where production small company); Big 0 Tire yet the trademark owner had not entered the Dealers, Inc., Goodyear Tire & Rubber market. defendant’s The factors are of im- (10th Cir.1977) (reverse 561 F.2d 1365 portance here, where markets for “infringer’s occurs where use of overlap moss slightly, and fertilizer but are plaintiffs mark results in confusion as to not in competition. direct The two origin plaintiffs product”). In reverse together. yet often used Fisons has not market, entered the consumer fertilizer junior user saturates plans claims it the market with a has to do so and introduced similar trademark and overwhelms the evidence to that effect. senior public user. The comes to assume B. Reverse Confusion really the senior user’s are Plaintiffs under the Lanham Act also junior user’s or that the former has be- rely on “reverse confusion” or “dilution” of come somehow connected to the latter. trademark adopted theories that have been The result is that the senior user loses the by a appeal.9 number of other courts of Or- value of product the trademark —its identi- mark, 9. previously adopted While we have not these one of the considerations in reverse confu- theories, Lapp, spoke protecting in Lapp, sion. See 721 F.2d at 464. expansion market a senior user of a trade-

475 of confusion.10”We there was little likelihood identity, control over corporate ty, ability to reputation, and § and goodwill jurisdiction 28 have under U.S.C. into markets. move new case, In this the mark is

Ameritech, F.2d at 811 incontestible, plaintiff so had to show confu- recognition of reverse Without of confusion to be entitled to relief. likelihood sion, have little users would smaller senior question in are not in Because the larger, powerful more against protection competition, applied district court direct or con- want to use identical companies who Interpace Corp. v. the ten-factor test of trademarks. fusingly similar (3d Cir.1983). 460, Inc., 463 [failing to consequence of logical The “purchasers found of ordi- the The would be recognize confusion] reverse district.court competition lia- unfair immunization from nary intelligence” unlikely to confuse were a well established bility company with Fairway Vigoro’s trademark with power the economic name and with trade appeal, mark. On Green name extensively for a to advertise misapplied Lapp fac- the court contends competitor. If is to the law taken from a applied should have the law of re- tors and off, anyone passing recovery to limit verse confusion. any adopt can adequate and resources size meaning develop a new trademark analysis In its oí the likelihood of confu- of the sec- that trademark as identification sion, the district court combined some products. ond user’s out in Ford Motor Co. v. ten factors set Dealers, (quot F.2d at 1372 Big Tire 561 O Products, Inc., F.2d Summit Goodyear Tire & ing Big Tire Dealers v. O (3d Cir.1991) Lapp and omitted oth- (D.Colo. F.Supp. Rubber its outline and note the cor- ers. We follow 1976)). Lapp parentheses. in responding factors adopted yet Although we have not in a trademark of reverse confusion doctrine Ac- Trade and Evidence A. Channels case, the state- here and endorse we do so (6), (4), (7), (Lapp tual factors Appeals States Court ment of the United Confusion (3)). Circuit: for the Second objectives Act—to [the Lanham] stated: The district court in its trade- owner’s interest protect an public free from con- by keeping fertilizer and products, two These goods and ensur- the source of fusion as to trade, moss, in channels of are sold similar important in a competition ing fair —are garden supply including retail home and typical confusion as case of reverse stores, directed to the same infringement. Were reverse who do purchasers, homeowners or similar basis to obtain not a sufficient garden care. With their own lawn and larger company protection, a Lanham Act product in the market Vigoro placing its infringe impunity the senior could with having implemented August of Consequently, we a smaller one. mark of plan promotion and adver- an extensive ... is action- hold that reverse confusion market, ex- tising in that one would have 43(a) § Lanham Act. under able that, risk if were a substantial pected there (citation omitted). 490-91 Banff, 841 F.2d at place, the in the market of actual confusion III. forward at the have come plaintiff would evidence of July of 1991 with some trial the district appeal, Fisons contends On It not. confusion. did finding that actual misapplied relevant law Fidelity findings & Gaur. of fact the district court's 10. We review Assn., error, Cir.1992). cross-appeal of a deni- Metal Workers Int’l We review the for clear Sheet Group, attorneys' 19 v. 2300 Act for Local under the Lanham al of fees (3d Cir.1991), plenary Mills, review and exercise Terry Inc. v. of discretion. Standard abuse interpretation, application and conclu- 778, (3d Cir.1986). Co., over its Mfg. 782 803 F.2d Shen Group Dev. v. United States sions of law. Tudor Horticulture, slip op. Although at 8. even to distributors. The fertilizer was not (Lapp acknowledging the channels of trade shipped January to until distributors (7)) target (Lapp and the audience probably factor was not offered to consumers (8)) similar, or were the same factor until month a or more after that. The test weigh did not these similarities district court perspec- the likelihood of confusion from the Instead, appeared in Fisons’ favor. consumers, ordinary tive of not from the similarities, of these assume that because perspective people in the trade. See Ford plaintiff have been able to collect and Co., should By 930 F.2d at 297. the start of present (Lapp evidence actual confusion trial, product had been available to con- 6)) any if there had been risk or factor sumers less than six months. plaintiff Because likelihood of confusion. did parties When used have similar evidence, present appar- the court not such period marks for a sufficient of time without ently in failed to count similarities chan- evidence of consumer confusion about the target in nels of trade and audience products, source of the there is an inference misapplied favor. The district court the law that future consumers will not be confused not Lapp, here. we did discount the e.g. Paper, either. See Scott 589 F.2d at strength plaintiffs case in one area be- (finding no likelihood of in another; in weighed cause of weakness part because “defendant’s mark had been separately.11 importantly, each factor More forty years utilized ... any over without while evidence of actual confusion would confusion.”). case, evidence of actual In this case, strengthen plaintiffs it is not essential. the district court will have to reevaluate Lapp, in As we stated “Once a trademark Lapp light factor in of the fact confusion, owner demonstrates likelihood of Vigoro’s produce was not available to con injunctive it is relief.” entitled sumers until spring the winter or of 1992. In F.2d at 462. addition, the court should take into account Furthermore, the district court’s conclu- products were ones consumers any sion that evidence of actual confusion spend little time and in selecting; care in the (6)) (Lapp appeared have factor products, case of such confusion as to their products time the two were on the market origin may pass unnoticed.12 (4)) may (Lapp factor not be warranted this district court case. The stated that Vi- Similarity B. (.Lapp the Two Marks fac- goro placed its in the had market in (1)). tor 1991, August, year before the start of the trial, finding August, said, but that was error. As degree similarity we have the date of the may trade show when important marks be the most of the ten displayed product, first its new Co., not in Lapp. factors Ford Motor 930 F.2d the date of distribution to retail factor, outlets or at 293. In considering this the dis- say given 11. This is not to that all factors must unlikely be chasers are to bother to inform the equal weight. weight given The to each factor in trademark owner when are confused about picture, weighing the overall plaintiff as well as its inexpensive product.” an Beer Nuts v. Clover defendant, must be done on an indi- (10th Club Foods 805 F.2d Cir. fact-specific vidual basis. Not all 1986); of the factors Corp. see also Union Carbide v. Ever- present every emphasized case. We have Ready, denied, (7th Cir.), cert. importance of the marks in 429 U.S. 97 S.Ct. 50 L.Ed.2d 94 likelihood of Ford Motor (1976). at but we have not ranked the factors other- (3), Lapp The court did not discuss factor wise. price and other factors indicative of expected products ordinary the care and represent at attention Because the issue con- consumer, making purchase. greater may small sumers when investment for the this not attention, be a case in which actual confusion care and would readi- less the likelihood of ly Although prod- manifest itself to manufacturer. The confusion. the district court made no factor, finding ucts are malfunction. If the con- on this there was uncontested Fairway peat sumer spend thinks evidence moss in the record that consumers produced by Green deciding fertilizer are the same com- little time and attention which of the pany, may buy manufacturers not know. "Pur- low-cost in this market.

477 Inc., Products, Conagra, Inc. 640 v. in rn similarities obvious noted the trict (D.Del.1986)(“[Similarity 1263, 1270 F.Supp. “Both include Vigoro’s marks. ‘Banquet Dish’ and attempt to associate the marks ‘Side fairway. between Both the word obvious”); Country so is both do Dish for One’ golf, and Side with (3d Floors, golf a course F.2d 1056 design Gepner, has v. 930 Inc. package a using triangu- Cir.1991) (where a red green portions of two pin on the dominant green, a the rectan- opposed “Country pin marks, flag “Country [as on the Floors” lar golf courses].” on generally same, likely). found gular flag Tiles,” confusion is are the Horticulture, op. at 8. slip Here, similarity Fisons of marks resembles that however, find these similar- court, noted, declined correctly Lapp. trade in As confusing. It stated: ities require not exact infringement does mark incorporate the two marks owner trademark as the uses copying [W]hile ways that [fairway]13, they identical, do so not be word “The need it. marks things. Fair- Evans, different suggest somewhat & confusingly Merchant similar.” place, golf thing or a Co., way suggests Bldg. Products 963 Roosevelt Inc. v. suggests fairway. Fairway Green Cir.1992) course (3d Country (quoting 636 F.2d fairway golf course color, of a the color 1063). Floors, They are at confus 930 F.2d drawing golf of a including (although ordinary if consumers would ingly similar may lead one package green on course Fairway peat moss and likely conclude green Fairway Green to associate share a common fertilizer Green not, course). alone do The names golf aon source, affiliation, sponsorship. connection confusion. suggest a risk of therefore Quaker Sands, Taylor Co. v. Oats & Wood (7th Cir.1992); added). (footnote see The court went also F.2d 957 978 Id. 8-9 at Club, Mighty simi- Inc. v. were some that while there International Kennel to note on (7th Cir.1988); Inc., 1079, 1089 in Star, the differences packaging, in the larities Andrews, color, so substan- materials were Mfg. Co. design, M. Kramer Cir.1986). (4th to differentiate tial tended at 9. Id. and sellers.14 appearance of the analyzing the In may be some The fact that there names, their analyzing products, as suggest is names in what the two differences to focus on the seem court did not district the names enough to conclude alone

not As the United States impression. overall Fi Vigoro’s use of confusingly similar. not stat Appeals for Second Circuit Court trademark, “Fairway,” in an arc entire sons’ similarity of ed, determining the the test for word, suggests a “green,” descriptive over a create the the labels marks is “whether similarity. sub confusing “[A] likelihood sepa when viewed impression’ ‘same overall may not avoid sequent user Dep’t v. Federated rately.” Banff, Ltd. mark and another’s entire by appropriating Cir.1988) (2d Stores, Inc., non-descriptive matter adding descriptive or omitted). (citations American Auto. See McCarthy McCarthy, Thomas to it.” J. F.Supp. Agency, v. AAA Ins. Ass’n. Competition, Trademarks Unfair (In (W.D.Tex.1985) determining 1992). ed. § at 23-102 23:15[8] similar, confusingly two marks are recognized whether that courts have contends compari side-by-side test is not appropriate this court and explicitly, a rule but such marks, emphasizing differences implicitly. son recognized it have others consumer, average detail, whether but “Lapp” and we found the trademarks circum in isolated encountering one practical pur all identical for “Lapp Cable” only gen- having marketplace Tree Tave stances also 721 F.2d at 468. See poses. pic- in the pointed similarities out the 14. Fisons opinion the word used district court’s 13. The packages, greens golf on the course tures of here, “fairway,” “green” must meant but it have infringement. dress trade claim for made no only one common both marks contain because pro- However, "highly trade dress word, “fairway.” Ford Motor confusion. bative” of likelihood F.2d at 297. other, Horticulture, of the slip op. eral recollection Fisons at 10. Fisons two.) applied the contends the district confuse or associate Ford Mo- incorrect ignoring standards in strength tor 930 F.2d at we stated: its evidence of impression Id. at 293. marks rather than hended the We conclude detailed sentially the two marks. overall list: the ^[10] Perhaps marks are factors is impression created marks is es- analysis degree of legal created the most same, We the district court the first on standard when it undertook confusingly recently focusing ‘it them. is important very probable differences in the held that “if the Scott by on the overall similar.’ between misappre- ” Paper these that ries they are entitled to “green” is so common that it has no trade- L.Ed.2d 615 U.S. mark. Fisons marks based on their levels of inherent dis- tinctiveness. From least to most suggestive; protection because of its distinctiveness. Two Trademark are deemed using Pesos, -, are: (1) -, (4) Inc. v. Taco (1992). law generic; argues arbitrary; and protection. tests for the “inherently 112 S.Ct. recognizes The latter three its mark (2) Cabana, Inc., 2753, 2757, descriptive; distinctive” and Id. The word strength categories qualifies distinctive, fanciful.16 catego- of its — (3) significance mark applied when to lawn and Strength C. Mark (Lapp garden products, expert but there was testi- (2)). factor mony, which accepted, the district court that “Fairway” the term suggestive was either or The district court credited Fisons’ arbitrary.17 It qualify could therefore strength evidence of of its mark: that protection. meaning mark was incontestible within the Act, 1058, 1065,15 §§ the Lanham 15 U.S.C. The district court focused on Fisons’ strongly suggestive that it awas mark bor mark, failure to show that “Fairway,” its was dering being arbitrary, on and that it had uncommon or contained an unusual use of thirty years. However,

been in use for the word. The fact that a word is common court concluded: necessarily does not make it weak or unwor examples strength thy This list of protection trademark; as a the district particularly compel- the Fisons mark is not court’s focus on an unusual use of the word is ling of risk of evidence confusion. Fisons closer to mark. As the United States Court not, example, has shown that its FAIR- Appeals stated, for the Sixth Circuit “The uncommon, WAY mark is significant contains an factor is not whether the word word; unusual use of the nor common, has it shown itself is way but whether the up that it strength has built particular the word is used unique context is years with a enough over substantial to warrant protection.” economic investment that can Wynn Thomas, be confirmed Oil Co. v. (6th Cir.1988). depth evidence of a of consumer aware- “shell,” 1190 n. The words product.

ness of the mark and its Fisons’ “camel” “apple” uncommon, are not but failure to offer this they evidence arbitrary undermines are applied gasoline, when is, fact, argument cigarettes FAIRWAY computers. McCarthy on strong Trademarks, mark. § Similarly, 11:26[3]!18 meaning Brands, Smidler, 15. For the of “incontestible’’ under the Inc. v. 151 F.2d 34 Cir. Act, see, supra, 1945). Lanham n. 7. advertising, As a result of consumers drink, came to associate the mark with such a Sometimes, used, categories four are advertising, but without no one could have rea arbitrary grouped together. and fanciful sonably expected consumers to associate V-8 Sklar, e.g. See Assoc. v. Dranoff-Perlstein Id.; vegetable juice with a cocktail. see also 1 (3d Cir.1992). 11.04[1], McCarthy § on Trademarks Arbitrary trademarks are ones that do not any quality 18.McCarthy describe refers to the or characteristic of the conclusion that a com- automatically or services for which mon word used. The is "weak" as a trade- juice mark "V-8" eight on made fallacy. from different mark as the 'Common Word' 1 McCar- vegetables arbitrary. thy held to be § Standard 11.26[3]. Trademarks junior typically uncommon, user when reverse “Fairway,” is not term wealthier, company moss, powerful who can expert stated more applied advertising. An market with arbitrary overwhelm the suggestive between ranked junior may thereby aggressive therefore user achieve distinctiveness. the scale of strength peri- com greater its use of the a short commercial presented evidence it could enough that the senior user has after unusual od of time than mon term was See, protection. e.g.,Big years marketing product. its for trademark of qualify Dealers, Goodyear Inc. v. Tire & O Tire the scale of trademarks on Distinctiveness (10th Co., Rubber 1367-68 See, strength. mark’s measure of a is one Cir.1977) (in year, Goodyear one defendant Indus Nutri/System Inc. v. Con-Stan e.g., massive, $9,690,000in nationwide spent over Cir.1987). (9th tries, using “Bigfoot” campaign trade- promotional marketplace recog strength, or Commercial tire-buying organi- plaintiff, mark of a small mark, e.g. Ford is another. See the nition of $200,000). of zation with total net worth Co., Vigoro contends F.2d at 297. loses the “The result is that the senior user “Fairway” a as and use registration the identity, product value of the trademark —its prod parties for related third goodwill corporate identity, control over its Fisons’ claim of undermines ucts and services ability reputation, and to move into new and regis mark. O.M. strength of its Scott the Ameritech, In- Inc. v. markets.” American Fairway,” trademark, “Super tered a Corp., Technologies in six other fertilizer and commercial formation (6th Cir.1987). year, Vigoro In one registra pending active or companies have $500,000 advertising its new spent over “Fairway” for using the term marks tions of product, Fairway approxi- That is Green. machinery seed, garden grass lawn yearly mately amount of Fisons’ total equipment, and lawn services. While Fairway peat moss. sales of Fairway for related and uses of registrations mark and services make strong Fairway mark was market, strong if were in the same less in active use when scale trademarks prod markets in different their use using Vigoro Green started closely not related services that are ucts and mark, commercially The it was weak. claim necessarily undermine Fisons’ does not court, treating like in this case one district strength. confusion, great emphasis on the put forward strength of Fisons’ lack of commercial Fisons had court found The district In virtually its none on distinctiveness. up consumer it had built not demonstrated confusion, the mark of the senior reverse product the mark and its awareness commercially than typically user is weaker conclud through investment and substantial remand, junior user. On that of the of com to offer evidence failure ed Fisons’ have strength mark will to be of Fisons’ argument strength “undermines its mercial light adoption re- in of our reevaluated fact, is, strong mark.” in that FAIRWAY and its distinctiveness as well verse confusion Horticulture, slip op. at If this Fisons strength will have to be as commercial confusion, than rather a case of forward were considered. confusion, would be the district court reverse weight to evi giving considerable correct Adopting the Mark Vigoro’s D. Intent strength, absence. or its dence commercial (5)). (.Lapp factor confusion, the in a case of reverse But following say court had the The district strength is different of commercial evidence Vigoro’s intent: about of forward expect a case from what inquiry in a likelihood intent confusion, palm The relevant junior user tries to where the is “whether defen- case user. In those of the senior off his the intent of adopted a mark with confusion, dant junior trades on user forward appropriating the name; promoting confusion good it therefore is the senior user’s Pharma- good will.” W.W.W. advertising prior user’s expense of saved much Inc. v. Gillette In ceutical recognition of its mark. market create (S.D.N.Y.1992), aff'd, product market, F.Supp. in the defendant’s or that (2d Cir.1993). expand it is 984 F.2d 567 There is no into that market.” 721 adopted F.2d at 463-64. proof the name Fair The district court consid- only ered attempt planned expansion, evidence of way green in an to benefit from part second of the test. developed by Such narrow view general good will Fisons is not warranted. mark. its FAIRWAY Horticulture, Under the court looks slip op. at 10. expansion, at the likelihood of but also inquiry While the the district court “suggesting at facts consuming public inquiry” identifies as the “relevant intent is might expect prior owner to manufacture important, appropriate cases of for in the defendant’s market.” 721 confusion, ward not reverse In confusion. F.2d at a case of reverse case, junior type the the latter user does may it also suggesting consider facts the good not to trade on the will seek and name consuming public might expect junior the user; of the senior instead he overwhelms it. owner to manufacture a in the senior inquiry appropriate The intent to this case user’s market. suggesting pos One fact this Lapp is more like one we identified in in sibility companies is that other market both relying district finding on the court’s that products. presented Fisons evidence that Lapp, may innocently, “while have acted leader, Scott, the market O.M. peat sold both in conducting thorough was careless moss and fertilizer under the same brand name search for American uses of the name.” name, Hyponex. addition, In three other Lapp, questions 721 F.2d at 463. The the garden lawn companies in country, this district court should consider here are Kellog, Gandini and Fertiloam peat sell both Vigoro adequate an whether conducted name moss and fertilizer under the same brand companies marketing search for other similar Therefore, name. public the is used to see including under trademarks the name ing both peat fertilizer and moss marketed “Fairway,” through and whether it followed under the same name company. the same investigation with its when it found there Second, products the closely related companies. Vigoro were such Did consider together and are used preparing in lawns of confusion with compa- likelihood other gardens. Even if companies did (as products opposed nies’ marks and to con- not products, market both consuming sidering the likelihood that someone would public might find it natural company for one mark)? attempt contest its new Did it to See, to do so. e.g., International Kennel companies using mark, contact a similar such Club, (fact 846 F.2d at parties’ that as Fisons? Was careless in its evalu- products public are the might very kind the ation of the likelihood of confusion? well attribute to the provides same source additional evidence of likelihood of confu- E. Fisons’ Plans Enter the Market sion). (10)). (Lapp factor Finally, there is Fisons’ evidence of The district court found: planned expansion. Lapp, we stated: currently Fisons sells fertilizer in Cana- One of the chief granting reasons for da. At the trial it offered some evidence protection owner in a market that it plans expand had that business not his protect right own is to someday his into the United States. There was not to enter that McCarthy, market. J.T. point suggest sufficient evidence on this Trademarks Competition Unfair that possibility this should be a in factor an (1973). § 24:5 appears extremely When it analysis possible of a risk likelihood of likely, here, as it does that the trademark confusion. owner field, will soon enter the defendant’s this ... weighs heavily factor in favor of Horticulture, slip op. at 10. As this injunctive relief. appears Lapp, factor it includes “other suggesting facts consuming public that Lapp, 721 F.2d at 464. In where the might expect prior owner to expansion extremely manufacture evidence showed to be products to his or her car heavily plaintiffs CLASSIC wash weighed factor likely, the expansion, easily could that the makers assume If there is evidence favor. heavily in weigh expanded had strong, it will less CLASSIC into

it is less at ear wash business.” 839 F.2d plaintiffs favor. case, question (Lapp factor In this is whether

F.Relationship the Goods (9)). bought peat Fisons’ moss consumer who reasonably company could assume consider district court did not The offerings to include expanded had fertiliz- goods in factor, relationship of the “the this or, likely in be more this ease er simi because of consumers the minds confusion, whether a consumer who reverse moss and larity function.” advertising Fairway bought or saw as soil condi are both sold Vigoro’s fertilizer reasonably fertilizer could assume Green same to be used for the and meant tioners the same source also offered the planting. improve the soil purpose: peat moss it saw the stores. might the consumer question is whether reasonably one com conclude that therefore Factors Weighing G. prod related offer both of these

pany would Paper, 589 at ucts. In Scott factors set out Ford Motor Of ten relationship of in which the cases noted other determining the likelihood Lapp Co. to the enough close to lead products was misapplied court the district relationship of and the likelihood of confusion consider others. On re- some and did not Vera, v. by Inc. Scarves products: those mand, consider of the it should each factors (2d 1167, Ltd., 1173 Imports Todo weigh in a manner consistent with and each Cir.1976) (women’s with and apparel scarves opinion with the other case law. this and fragrances); James and cosmetics women’s Inc., Sign Beefeater, 540 Burrough v. Ltd. H. State Claims Law (7th Cir.1976) (liquor with res F.2d 275 concluded that Fisons’ The court district Corp. selling liquor); Carbide Union taurant Lanham Act claims failed because there 381-82 Ever-Ready, 531 v. and, therefore, no likelihood of denied, (7th Cir.), 97 S.Ct. cert. U.S. failed as well. Because the state law claims (1976) (batteries lamps 50 L.Ed.2d the likelihood confu- court will reconsider lamps); Dunhill bulbs and light Alfred remand, it also reconsider should sion London, Products Inc. v. Kasser Distillers law claims. state (E.D.Pa.1972), F.Supp. 1341 Corp., 350 aff'd Cir.1973) (3d 480 F.2d 917 opinion, without scotch bar accessories with (pipe tobacco IV. Paper, F.2d at 1230. whisky). See Scott above, we will reverse For reasons stated Thomas, 839 F.2d Wynn v. Oil Co. Fi- judgment the district court (6th Cir.1988), analyzed the court Act re- under the Lanham sons’ claims category, under the “Relatedness this factor claims and the trial on those mand for a new It assessed the relatedness of the Goods.” judg- affirm the We will state law claims.19 company one sold products care the car denying Vigoro’s court ment of the district bulk car wax for use and the consumers party attorneys’ prevailing claim for fees as an- washing car service and the car washes Act. under the Lanham essentially an sim- company sold under test The court ilar noted trademark. GARTH, concurring part Judge, Circuit enough goods were similar was whether part: dissenting in they assume were that a consumer could convincingly ana- majority opinion has con- The by court the same source. The offered v. Paper lyzed under Scott Co. cluded, buying appeal this was used “A consumer who any evi- whether additional recognize record has determine that an extensive 19. We developed We will already appropriate. in this been case. dence is the district to the sound discretion of leave it (3d Gold, Inc., that, Liquid impression Scott’s held “if the overall created Cir.1978) Interpace Corp. same, essentially the marks is ‘it is Cir.1983). very probable While I am in that confusingly F.2d 460 whole- the marks are (Citation omitted). majority agreement with the that we similar.’” hearted ruling must the district court’s reverse majority As the recognizes, analyzing merits,11 purpose can no see remand- appearance here, of the at issue ing for retrial of Fisons’ Lanham Act claims the district court failed to focus on their so evident that the when marks at issue impression. overall Maj.Op. at 477. One confusingly here are similar. only need look at the marks themselves to conclude that are so similar that one can Accordingly, I would reverse the decision only ordinary wonder how an consumer of court, judgment of the district enter in favor anything could be but confused claims, Act of Fisons on its Lanham parties’ indistinguishable use of the remand with instructions the district mark. packaging FAIRWAY The of the relief, appropriate court fashion the and con- products, prominent use of the word sider Fisons’ state claims. “Fairway,” and the triangular inclusion of a flag rising from a golfing tee centered on a I are, green, purposes, for all intents and virtu- majority’s opinion able details ally products. identical as to both Under eases, analysis required in Lanham Act Ford Opticians Motor Co. and Association of applies analysis but also to the record America, this all but creates appeal. Typically, having before us on found presumption requisite likelihood of application error in the district court’s confusion. Lapp analysis, we would reverse and remand Consequently, I point see no in ordering to the district court with instructions to take the district court to revisit this trademark foregoing opinion. actions with the consistent controversy in entirety, compelling Nevertheless, I see little need to do so in parties spend time, money, additional present Judge majority ease. Scirica’s and efforts re-litigating the Scott Pa- opinion already performed has the Scott Pa- factors, per/Lapp when the conclusion to per/Lapp analysis requisite and the balanc- which the district court must come has been analysis ing. That can lead to one effectively outlined so majority’s opin- conclusion: that the district court erred ion. ruling Vigoro on the merits of Fisons’ Lanham Act claims. II

Although we have that held a district Accordingly, I would reverse the district finding similarity court’s does not neces court’s order and remand with the direction sarily compel a conclusion that two marks the district court judgment enter similar, Evans, confusingly Merchant & Fisons on its Lanham Act claims. On re- Co., Inc., Inc. Building mand, then, v. Roosevelt Products the district court would have to (3d Cir.1992); Country F.2d do no appropriate more than fashion the , Floors, Gepner, (i.e., v. Inc. injunction, relief frame an assess dam- 1056 (3d Cir.1991), also have held “[p]er- ages, impose impose attorneys’ fees, or not haps etc.) important costs, interest, the most of [the] factors is and resolve Fisons’ state Paper claims, the first degree on the Scott list: the law which the district court failed to between the two adequately marks.” Ford address in its initial decision. Products, Inc., Motor Co. v. majority Summit dispose Because the of this (3d Cir.1991). Opti appeal in a manner which I believe is waste- Independent cians v. Opticians judicial resources, Ass’n Am. ful of I dissent from so Am., Cir.1990), we much majority’s opinion as would re- agree I majority longer also with the prevailing party that we must no under 15 U.S.C. affirm quest Vigoro's the district court’s denial of re- § 1117. attorneys' fees inasmuch as for retrial of Fi- to the district court mand Lanham Act claims.

sons’ CONNORS, Sr.;

Joseph E. P. Donald

Pierce; Miller; Sag Thomas H. William

gau; Dean, R. Trustee of the Paul Mine of America 1950

United Workers Trust 1950 Benefit Plan and

Pension Trust, Pension and 1974 Ben

Trust 1974

efit Plan and Trust

v. CORPORATION,

FAWN MINING corporation, MINE UNITED WORKERS

DISTRICT AMERICA, AFL-CIO; International

OF

Union, Mine Amer United Workers of

ica, AFL-CIO, Party Third Defendants. Mining Corporation, Appellant.

Fawn

No. 93-3301. Appeals,

United States Court

Third Circuit.

Argued Jan. July

Decided

Case Details

Case Name: Fisons Horticulture, Inc., in No. 93-7224 v. Vigoro Industries, Inc., in No. 93-7287

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 22, 1994

Citation: 30 F.3d 466

Docket Number: 93-7224, 93-7287

Court Abbreviation: 3rd Cir.