PARKS LLC, Appellant v. TYSON FOODS, INC; Hillshire Brands Company
No. 16-2768
United States Court of Appeals, Third Circuit.
ARGUED March 22, 2017 (Filed July 6, 2017)
220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237
Daniel T. Brier, Myers Brier & Kelly, 425 Spruce St.-Ste. 200, Scranton, PA 18503, Mark H. Churchill, Holland & Knight, 1600 Tysons Blvd.-Ste. 700, McLean, VA 22102 John J. Dabney [ARGUED], Mary D. Hallerman, McDermott Will & Emery, 500 N. Capitol St., N.W., Washington, DC 20001, Counsel for Appellees
Before: SMITH, Chief Judge, JORDAN, and ROTH, Circuit Judges.
OPINION OF THE COURT
JORDAN, Circuit Judge.
This case concerns a trademark that once enjoyed widespread recognition but has since grown considerably weaker. Since the 1950s, Parks Sausage Company has manufactured or licensed sausage under the brand name “PARKS.”1 At one point, PARKS was placed on the Principal Register of trademarks at the United States Patent and Trademark Office (“USPTO“), but, sometime in the early 2000s, Parks failed to renew the registration. In 2014, Tyson Foods, Inc. and Hillshire Brands Company (collectively, “Tyson“),2 the owners of the frankfurter brand BALL PARK, launched a premium frankfurter product called PARK‘S FINEST. Parks sued, arguing that Tyson was engaged in false advertising and was infringing Parks‘s trademark.
The District Court determined that Parks‘s claim for false advertising was really a repetition of its trademark claim, and that the PARKS mark was too weak to merit protection against Tyson‘s use of the PARK‘S FINEST name. We agree with the District Court and will affirm in all respects.
A. Parks and PARKS
Parks was founded in the 1950s by Henry G. Parks, Jr., a pioneering African-American businessman. The company had the distinction at one point of being the first African-American-owned company to be publicly traded on the New York Stock Exchange. Parks engaged in radio and television advertising directed to consumers and developed a well-known slogan, “More Parks Sausages, Mom, Please[.]” (Opening Br. at 29.) Though the PARKS brand had likely developed prominence sufficient for common law trademark protection earlier than 1970, the name was not registered at the USPTO until that year.
Following the death of Mr. Parks in 1989, the company he built fell on hard times. It eventually went bankrupt and was purchased by its current owners. Parks stopped making and selling PARKS products and instead entered into a licensing agreement in 2000 with Dietz & Watson, a Philadelphia-based producer of delicatessen meats, to make and sell PARKSbranded products. Around that time, the USPTO registration of the mark lapsed. In 2002, Parks also granted a license to Super Bakery, Inc., a supplier of baked goods that is related to Parks by common ownership, to sell PARKS-branded products in military commissaries. At least since the licensing agreement with Dietz & Watson 17 years ago, PARKS-branded products have been advertised primarily through grocery store handbills and circulars rather than through television and radio advertising.
From 2008 through 2014, Dietz & Watson sold over $38 million worth of PARKS-branded products. In 2014, PARKS sales through Dietz & Watson increased 40% from the previous year. In addition, from 2003 through August 2013, Super Bakery sold some $31 million in PARKS products.
B. Tyson, BALL PARK, and PARK‘S FINEST
BALL PARK brand frankfurters are well known, accounting for 23% of the revenue of all franks sold in the United States.3 Parks, LLC v. Tyson Foods, Inc., Civ. No. 5:15-00946, 2015 WL 4545408, at *4 (E.D. Pa. July 28, 2015). Tyson owns the BALL PARK mark and claims that the brand is recognized by 90% of American adults over the age of eighteen. Id. In 2014, Tyson introduced a line of “super-premium” frankfurters that it decided to call “[PARK‘S FINEST].” Parks, LLC v. Tyson Foods, Inc., 186 F. Supp. 3d 405, 412 (E.D. Pa. 2016). It says it chose that name after conducting extensive consumer research. According to Tyson, surveys showed that the name “conveys premium quality in a clever, memorable way that should be ownable for the [BALL PARK] brand.” (App. at 375.)
Packaging for the frankfurters includes the BALL PARK logo superimposed over the words PARK‘S FINEST.
(App. at 11.) Tyson says that it designed the packaging to “strongly convey[]” the BALL PARK mark so that consumers would make the connection between BALL PARK and the PARK‘S FINEST product. (App. at 390.) In advertisements, the product would be referred to as “[PARK‘S FINEST] from [BALL PARK],” Parks, 2015 WL 4545408 at *2, or sometimes “BALL PARK‘S FINEST.” (Opening Br. at 17.) Before the product was launched, Tyson‘s attorneys undertook a trademark search, discovered the lapsed PARKS mark, and confirmed the cancellation of the mark with the USPTO.
C. Procedural Background
Parks filed suit against Tyson in 2015, asserting false advertising, false association, and trademark dilution claims under the Lanham Act, as well as Pennsylvania common law and statutory claims.4 It requested a nationwide injunction and an accounting of the sales of PARK‘S FINEST franks.
The District Court denied Parks‘s motion for a preliminary injunction because it concluded that Parks was unlikely to succeed on the merits of its false advertising claim. Parks, 2015 WL 4545408 at *16. Once discovery ended, Tyson moved for summary judgment on all of Parks‘s claims. Parks conceded that its trademark dilution claim and its state law claims should be dismissed, and they were. The Court then granted summary judgment on the remaining Lanham Act claims of false association and false advertising, concluding that “no reasonable factfinder could find in Parks‘s favor[.]” Parks, 186 F. Supp. 3d at 413 (footnote omitted). Parks timely appealed.
II. DISCUSSION5
Another portion of the statute,
A. False Advertising
As noted above, the statement at issue in a false advertising claim must “misrepresent[] the nature, characteristics, qualities, or geographic origin” of a product.”
Parks also argues that PARK‘S FINEST is misleading with respect to the “nature, characteristics, [or] qualities,”
To the extent that Parks is advancing the related argument that the name “PARK‘S FINEST” is misleading because it blurs the distinction between frankfurters and sausages and is therefore confusing to consumers, that argument falters on two grounds.9 First of all, because the packaging for PARK‘S FINEST displays “a factfully accurate, unambiguous statement” that the product is a frankfurter, “[n]o reasonable consumer could be misled by those statements, and the rest of the label does not put those statements in doubt.” See Pernod Ricard, 653 F.3d at 252 (reaching the same conclusion with regards to a rum called Havana Club that was actually made in Puerto Rico but informed consumers on the packaging that it was made in Puerto Rico).10 Second, Parks has undercut its own argument by repeatedly saying both at the District Court and before us on appeal that hot dogs and sausages are actually not distinctive.11 If a frankfurter is a kind of a sausage, as Parks suggests, then there is nothing false or misleading if the advertising for PARK‘S FINEST suggests that to consumers.
Parks‘s final argument is that the name PARK‘S FINEST is misleading with regard to “origin.” (Opening Br. at 15-16.) To a large extent that argument falters because it repeats the same mistakes we have already discussed. But it also fails for another reason.
That conclusion is consistent with precedent from other circuit courts. See Forschner Grp., 30 F.3d at 355 (“The question is whether [the mark] can be construed to mean that the product is made in a certain locale.“); cf. Black Hills Jewelry Mfg. Co., 633 F.2d at 750 (noting that the Lanham Act follows the common law “tradition of providing protection against outsiders who use [a] geographical designation“). It is also consistent with Supreme Court precedent interpreting the term “origin of goods” in the context of a false association claim under the Lanham Act. In Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37, 123 S. Ct. 2041, 156 L. Ed. 2d 18 (2003), the Court emphasized that “origin” could refer to either “geographic origin” or “to origin of source or manufacture” but rejected the argument that the term origin could “be stretched” to include broader concepts of origin such as “the creator of the underlying work,” id. at 29-33, 123 S. Ct. 2041, or “the author of any idea, concept, or communication embodied in those goods,” id. at 37, 123 S. Ct. 2041. So the term “origin” has already been cabined.
Moreover, as we suggested in Pernod Ricard, the term is further narrowed in
The name PARK‘S FINEST says nothing about the product‘s “geographic origin.” In the end, Parks has not made a valid claim for false advertising because none of its grievances concern the “nature, characteristics, qualities, or geographic origin” of PARK‘S FINEST.15
B. False Association
The elements of a false association trademark claim under the Lanham Act track the elements of a common law trademark infringement claim: a plaintiff must prove that “(1) the marks are valid and legally protectable; (2) the marks are owned by the plaintiff; and (3) the defendant‘s use of the marks to identify goods or services is likely to create confusion concerning the origin of the goods or services.” Ford Motor Co. v. Summit Motor Prod., Inc., 930 F.2d 277, 291 (3d Cir. 1991) (internal quotation marks omitted). Even when those elements are satisfied, relief is limited in scope to where “market penetration is significant enough to pose the real likelihood of confusion among the consumers in that area.” Charles Jacquin Et Cie, Inc. v. Destileria Serralles, Inc., 921 F.2d 467, 472 (3d Cir. 1990) (internal quotation marks omitted).
A valid and legally protectable mark must be “distinctive,” which may be shown in two ways. Some marks are, by their very nature, considered distinctive. 2 McCarthy on Trademarks § 11:2. Such inherently distinctive marks include ones that are arbitrary or fanciful, such as APPLE for computers or SHELL for gasoline, id. at § 11:11, as well as ones that are suggestive of a product‘s function but not descriptive such as PENGUIN for freezers or SAMSON for weight training machines, id. at § 11:67. On the other hand, marks that are merely descriptive of the product are not inherently distinctive and secondary meaning must be proven before such a name will be protectable.16 Id. at 11:2; see Commerce Nat‘l Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 438 (3d Cir. 2000) (“If the mark has not been federally registered ... then validity depends on proof of secondary meaning, unless the unregistered or contestable mark is inherently distinctive.” (internal quotation marks omitted)). The District Court concluded that PARKS was not inherently distinctive and had not achieved secondary meaning. We agree.
1. Lack of Secondary Meaning
Trademarks based on the surname of a founder are not inherently distinctive. Doeblers’ Pennsylvania Hybrids, Inc. v. Doebler, 442 F.3d 812, 827 n.17 (3d Cir. 2006), as amended (May 5, 2006). In a painful stretch, Parks argues inherent distinctiveness should be a jury question because, even though its mark is, in fact, the surname of the company‘s founder, the word “parks” is also the plural of “park,” as in recreational land, and therefore could be seen as an “arbitrary” mark. But it is undisputed that Parks was named after its founder, someone who Parks describes with justifiable pride as “an important figure in the history of American Business,” (App. at 60) and Parks‘s reputation is closely linked to its founder.17 Based on that record, no reasonable juror could conclude that the name PARKS was anything other than a reference to the founder. It is obvious that the mark is not inherently distinctive.
Parks was therefore required to demonstrate that the mark had secondary meaning at the time that Tyson began to use the name PARK‘S FINEST. As noted earlier, “[s]econdary meaning exists when the mark ‘is interpreted by the consuming public to be not only an identification of the product or services, but also a representation of the origin of those products or services.‘” Commerce Nat‘l, 214 F.3d at 438 (quoting Scott Paper Co. v. Scott‘s Liquid Gold, Inc., 589 F.2d 1225, 1228 (3d Cir. 1978), superseded on other grounds by statute, Fed. R. Civ. P. 52(a), as recognized in Shire US Inc. v. Barr Labs., Inc., 329 F.3d 348, 352 n.10 (3d Cir. 2003)). In assessing secondary meaning, we have relied on the following factors, to the extent relevant:
(1) the extent of sales and advertising leading to buyer association; (2) length of use; (3) exclusivity of use; (4) the fact of copying; (5) customer surveys; (6) customer testimony; (7) the use of the mark in trade journals; (8) the size of the company; (9) the number of sales; (10) the number of customers; and, (11) actual confusion.
Id. (citing Ford Motor Co., 930 F.2d at 292).
As did the District Court, we consider each of the factors relevant to this case and conclude that no reasonable juror could decide that PARKS enjoyed secondary meaning at the time of the alleged infringement.18
i. Extent of Advertising
Secondary meaning is generally “established through extensive advertising which creates in the minds of consumers an association between the mark and the provider of the [products or] services advertised under the mark.” Id. Use of a mark “for a long period of time in a prevalent advertising campaign” can “create a reasonable inference” of secondary meaning. E.T. Browne Drug Co., 538 F.3d at 200. Since approximately 2001, PARKS has not been advertised directly to consumers aside from around $14,000 a year that Dietz & Watson has spent on circular advertisements and in-store product demonstrations. Super Bakery has primarily engaged in direct marketing to “institutions and military facilities.” Parks, 186 F. Supp. 3d at 422. Decades ago, in the 1960s and ‘70s, PARKS had employed a ubiquitous and long-running ad campaign to reach consumers, and while there may still be some faint echoes of the campaign in the minds of some people, there is no evidence of recent “extensive advertising” such as would create the necessary mental association between the mark and the product. Commerce Nat‘l, 214 F.3d at 438. This factor thus cuts against a finding of secondary meaning.
ii. Length and Exclusivity of Use
The “length of use” factor favors Parks, as its mark has been in continuous use for more than 50 years. Additionally, Parks has used or licensed the mark exclusively throughout the entirety of the company‘s existence. And, of course, the fact that PARKS was once on the Principal Register at the USPTO indicates that PARKS had acquired secondary meaning once upon a time. Cf. 2 McCarthy on Trademarks § 15:32 (describing how registration creates a presumption of secondary meaning). But consumer perceptions have a half-life, and “once a mark, always a mark” has never been a principle of trademark law. Merely proving length and exclusivity of use does not prove widespread familiarity. As the District Court noted, “Parks has not cited to any evidence to attempt to quantify how widespread the name was known over those years before the present owners purchased the company out of bankruptcy in the late 1990s[.]” Parks, 186 F. Supp. 3d at 426. So while the length and exclusivity of use unquestionably favor Parks, those factors alone cannot carry the day.
iii. Evidence of Copying
Parks contends that Tyson copied the PARKS mark when it chose the name PARK‘S FINEST. But Parks‘s only evidence of copying is a bare inference from the fact that Parks and Tyson compete in a similar space and that Tyson, upon a trademark search, found the lapsed PARKS mark. On the other hand, Tyson submitted extensive focus group and survey data that showed how the name PARK‘S FINEST was selected without any reference to PARKS. Tyson emphasized that the name PARK‘S FINEST was a finalist for the new brand name even before the trademark search was conducted. While on summary judgment the non-moving party is entitled to reasonable inferences, it would be unreasonable on this record to conclude that Tyson copied PARKS. Even the most generous weighing of this factor for Parks leaves it neutral.
iv. Customer Surveys
Parks conducted a survey that is used primarily to test for consumer confusion, but it then sought to use that same survey to also prove secondary meaning. The attempt to make the survey do double duty was unwise.
There are two predominant formats of consumer surveys used in trademark litigation to show a likelihood of confusion. The first, the Ever-Ready survey, named after the case of Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366, 385-88 (7th Cir. 1976), superseded on other grounds by statute, Fed. R. Civ. P. 52(a), as recognized in Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1429 (7th Cir. 1985), involves showing consumers only the potentially-infringing product and asking open-ended questions to determine whether they believe the product is associated with the senior mark. See Jerre B. Swann, Likelihood of Confusion Studies and the Straitened Scope of Squirt, 98 Trademark Rep. 739, 746 (2008) (describing the Ever-Ready format as the “gold standard” for likelihood of confusion surveys). Even though that survey design is most helpful for illustrating a likelihood of confusion, it can also indicate secondary meaning by showing a high degree of familiarity with the senior mark. Id. at 745 (“The [Ever-Ready] format ... addresses ... brand strength.” (emphasis added)).
An Ever-Ready survey is usually employed by owners of commercially strong marks. Id. at 739. Holders of weaker marks more frequently employ a Squirt survey, named after the type used in SquirtCo v. Seven-Up Co., 628 F.2d 1086, 1089 n.4 (8th Cir. 1980). Parks‘s expert, Mark Lang, chose to use a Squirt survey because of what he described as “the relatively weak commercial strength of the [PARKS] brand[.]” (App. at 658-59.) He also said that a Squirt survey was appropriate because PARKS and PARK‘S FINEST “have a high degree of proximity in the marketplace[.]” (App. at 659.) In a Squirt survey, two products are placed side by side, often with other products that serve as controls, and participants are asked questions to determine if confusion exists as to the source of the products.19 Swann, 98 Trademark Rep. at 749-50. Courts have sometimes criticized Squirt surveys for utilizing closed-ended questions that can lead participants to the desired answer. See Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477, 487-88 (5th Cir. 2004) (critiquing a Squirt survey for pushing “survey participants to search for any connection, no matter how attenuated ... instead of permitting participants to make their own associations“); Riviana Foods Inc. v. Societe Des Produits Nestle S.A., Civ. A. No. H-93-2176, 1994 WL 761242, at *4 (S.D. Tex. Dec. 20, 1994) (rejecting a Squirt survey because it “used a leading question on the likelihood of confusion issue“); see also Swann, 98 Trademark Rep. at 752-53 (compiling cases). Nevertheless, a well-designed Squirt survey may show a likelihood of confusion. What it does not do or even purport to do, however, is prove secondary meaning.
As the District Court perceived, there was a “fundamental[] flaw in the survey‘s methodology,” if the point was to show secondary meaning. Parks, 186 F. Supp. 3d at 418. Because the survey presented an image of both PARKS and PARK‘S FINEST, a consumer who had never heard of PARKS could still conclude that the two products were affiliated. Specifically, participants were shown two products with the words “Parks” or “Park‘s” in the title and several other hot dog or sausage products with names bearing no obvious linguistic connection to Parks, and then asked whether any of the products were affiliated. Given the products shown, PARKS and PARK‘S FINEST were the obvious choices. Cf. THOIP v. Walt Disney Co., 788 F. Supp. 2d 168, 183 (S.D.N.Y. 2011) (rejecting a Squirt survey in part because the allegedly infringing product “stood out like a bearded man in a lineup with four clean-shaven men” and therefore participants were pushed to reach a particular outcome (internal quotation marks omitted)). Participants were therefore primed to reach that conclusion, even if they were not familiar with either PARKS or PARK‘S FINEST as trademarks.20 Cf. Nat‘l Distillers Prods. Co., LLC v. Refreshment Brands, Inc., 198 F. Supp. 2d 474, 484 (S.D.N.Y. 2002) (observing that a similar survey was flawed because “every respondent was exposed to the [allegedly infringed] product ... thus acquainting them with a product that they would almost certainly have been unfamiliar with otherwise, due to [the product‘s] very limited distribution network and weak sales“).
As a result, while Lang‘s survey may or may not have been useful for illustrating a likelihood of confusion,21 it was certainly not probative of whether PARKS had secondary meaning. Rather, there were at least three equally plausible conclusions that a participant could have reached when responding that PARKS and PARK‘S FINEST were associated: 1) that PARK‘S FINEST came from Parks (the inference Parks obviously preferred); 2) that PARKS was made by Tyson as an extension of the BALL PARK mark; or 3) that PARK‘S FINEST and PARKS were both made by some unknown third party. None of those inferences is more likely than the other, so the survey tells us nothing about whether the PARKS mark had achieved sufficient consumer recognition to qualify as having secondary meaning. Cf. Itamar Simonson, The Effect of Survey Method on Likelihood of Confusion Estimates: Conceptual Analysis and Empirical Test, 83 Trademark Rep. 364, 387 (1993) (noting that the “[Squirt] [f]ormat[] tend[s] to lead to relatively high confusion estimates when the senior and junior marks appear as logical extensions“).
Parks nevertheless argues that “proof of one—likelihood of confusion—is proof of the other—secondary meaning.” (Opening Br. at 35) (relying on Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 465 (3d Cir. 1983)). That is simply wrong. It is true that evidence proving secondary meaning and evidence proving likelihood of confusion may sometimes overlap. But not always. See 2 McCarthy on Trademarks § 15:11 n.1 (“Not every response rate that shows likely confusion establishes secondary meaning and not every survey that fails to show likely confusion establishes an absence of secondary meaning.” (quoting Vincent N. Palladino, Secondary Meaning Surveys, in TRADEMARK AND DECEPTIVE ADVERTISING SURVEYS: LAW, LAW SCIENCE, AND DESIGN 98 (2012))). Two marks can be confusingly similar even if neither has secondary meaning. See Scott Paper, 589 F.2d at 1229 (noting that “[l]ikelihood of confusion is an analytically distinct” concept from secondary meaning). Consumers may find an association even if both marks were previously unknown to them. Establishing that two marks are similar does not necessarily lead to any valid conclusion about whether either of the two has secondary meaning. See Spraying Sys. Co. v. Delavan, Inc., 762 F. Supp. 772, 779 (N.D. Ill. 1991) (“However proper the survey question may have been to prove likelihood of confusion between the marks, it was improper to prove secondary meaning.“), aff‘d, 975 F.2d 387 (7th Cir. 1992); Spraying Sys. Co., v. Delavan, Inc., 975 F.2d 387, 394 (7th Cir. 1992) (noting that a leading survey design “created a bias in favor of identifying a single company” as the source of the products and therefore the survey results could not prove secondary meaning). The “customer survey” factor, Commerce Nat‘l, 214 F.3d at 438, thus favors neither Parks nor Tyson.
v. Size of the Company and Number of Sales and Customers
The size of a company, its total sales, and the size of its customer base can also be probative of secondary meaning because the jury is entitled to draw the logical inference that “[t]he larger a company and the greater its sales, the greater the number of people who have been exposed to [the] symbol used as a trademark, and the greater the number of people who may associate [that] symbol with a company or source with which they should be familiarized.” 2 McCarthy on Trademarks § 15:49. But “[r]aw sales figures need to be put into context to have any meaning.” Id. When put into context, the sales figures for PARKS are not probative of secondary meaning. Since 2011, sales of PARKS sausages accounted for no more than 1.3% of the breakfast sausage market in the northeast and 0.01% of the market in the mid-south in any given year.22 Dinner sausage sales made up less than 1% of the sales in the northeast and less than 0.5% of the sales in the mid-south. Sales figures outside of those regions were even less significant. None of the sales numbers are large enough to indicate secondary meaning.
Sales in Pennsylvania and New Jersey were considerably greater than sales in other states, so “[i]t is possible that sales in th[o]se states ... could be large enough, relative to the market in those states, to be probative of secondary meaning in those markets.” Parks, 186 F. Supp. 3d at 424 n.12. Parks, however, made the expansive and ultimately unfounded claim that its PARKS mark had secondary meaning throughout the whole eastern United States,23 and it failed to break down data on market share by state. So, at most, Parks‘s sales data might weakly support a finding that the PARKS mark has secondary meaning in one portion of the northeast, but it does not support the broader claim that Parks made in its complaint.
vi. Actual Confusion
The evidence that Parks put forth of actual confusion was similarly unimpressive. After extensive discovery, the company could only produce two declarations from employees of Dietz & Watson and Super Bakery. The first declaration came from an employee at Dietz & Watson with some responsibility for PARKS-branded products. He recounted three instances of consumer confusion: one consumer contacted Parks to complain about “[PARKS] from BALL PARK,” and two consumers called Parks to complain about the nitrate content of its sausages—presumably because PARK‘S FINEST prominently advertises that it is free of nitrates. Parks, 2015 WL 4545408 at *6. The second declaration came from a manager at Super Bakery who recalled his own personal confusion when he first encountered the PARK‘S FINEST product. Id.
Such declarations from friendly sources are potentially “self-serving and of little probative value.” 815 Tonawanda St. Corp. v. Fay‘s Drug Co., Inc., 842 F.2d 643, 648 (2d Cir. 1988). More importantly, though, PARK‘S FINEST has sold “many millions of units,” Parks, 186 F. Supp. 3d at 426 (internal quotation marks omitted), and one would expect to see more than a handful of vague complaints of confusion. If anything, the paucity of proof of actual confusion suggests that the PARKS mark lacks secondary meaning. As we have said before, “harmonious coexistence in the same geographical area ... cuts against [a] claim to secondary meaning.” Commerce Nat‘l, 214 F.3d at 440.
viii. Conclusion with Regard to Secondary Meaning
At the end of the day, the fact that the PARKS mark has existed for a long time and that it enjoyed secondary meaning half a century ago cannot overcome the weight of the factors against Parks. The record shows that there is almost no direct-to-consumer advertising, that Parks had a miniscule market share, and that there was practically no record of actual confusion.24 To find secondary meaning, jurors would have to make an impermissible “leap of faith[.]” Parks, 186 F. Supp. 3d at 426 (quoting E.T. Browne Drug Co., 538 F.3d at 199). Accordingly, the District Court correctly concluded that no reasonable jury could find that the PARKS mark had secondary meaning.25
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court‘s order granting summary judgment to Tyson on Parks‘s claims.