STARBUCKS CORPORATION, a Washington corporation, STARBUCKS U.S. BRANDS LLC, Plaintiffs-Counter-Defendants-Appellants, v. WOLFE‘S BOROUGH COFFEE, INC., a New Hampshire corporation, d/b/a BLACK BEAR MICRO ROASTERY, Defendant-Counter-Claimant-Appellee.
Docket No. 12-364-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2012 (Argued: January 9, 2013 Decided: November 15, 2013)
Before: KATZMANN, Chief Judge, KEARSE and LOHIER, Circuit Judges.
This is an appeal by the plaintiffs from a decision of the United States District Court for the Southern District of New York (Swain, J.) following a second remand from this Court. The District Court concluded that plaintiffs have failed to prove that defendant‘s use of its “Mister Charbucks” and “Charbucks Blend” marks is likely to dilute plaintiffs’ famous “Starbucks” marks, and denied injunctive relief. We hold that the District Court did not clearly err in any of its factual determinations, including its evaluation of the six non-exclusive factors bearing on whether a mark is likely to cause dilution by blurring, enumerated in the Federal Trademark Dilution Act of 1995, as amended by the Trademark Dilution Revision Act of 2006. See
JOHN-MARK TURNER, Christopher Cole, Sheehan, Phinney, Bass + Green, P.A., Manchester, NH, for Defendant-Counter-Claimant-Appellee.
LOHIER, Circuit Judge:
Starbucks Corporation and Starbucks U.S. Brands LLC (together, “Starbucks“) appeal from a judgment of the United States District Court for the Southern District of New York (Swain, J.) denying Starbucks’ request for an injunction pursuant to the Federal Trademark Dilution Act of 1995 (“FTDA“),
On appeal, Starbucks argues that the District Court erred in finding only minimal similarity and weak evidence of actual association between the Charbucks Marks and the Starbucks Marks. Starbucks also contends that the District Court erred in balancing the statutory dilution factors by giving no weight at all to three of the factors—the strong distinctiveness, exclusive use, and high degree of recognition of the Starbucks Marks—and placing undue weight on the minimal similarity between the marks.
For the following reasons, we conclude that the District Court did not err in its factual findings, and, balancing the statutory factors de novo, we agree with the District Court that Starbucks failed to prove a likelihood of dilution. We therefore affirm.
We assume familiarity with the underlying facts and long procedural history of the case, which are set forth in our previous opinions, Starbucks Corp. v. Wolfe‘s Borough Coffee, Inc., 477 F.3d 765 (2d Cir. 2007) (”Starbucks II“), and Starbucks Corp. v. Wolfe‘s Borough Coffee, Inc., 588 F.3d 97 (2d Cir. 2009) (”Starbucks IV“). We recount them here only as necessary to explain our disposition of this appeal.1
As of 2005, when the bench trial occurred, Starbucks had grown from a single coffee shop in Seattle in 1971 to a singularly prominent global purveyor of specialty coffee and coffee products, with 8,700 retail locations worldwide and revenues of $5.3 billion for fiscal year 2004. Starbucks U.S. Brands is the owner, and Starbucks Corporation a licensee, of at least 56 valid United States trademark registrations that include the Starbucks Marks. The Starbucks Marks are displayed on signs and at multiple locations in each Starbucks store, as well as on the Starbucks website.
Starbucks has devoted substantial time, effort, and money to advertising and promoting the Starbucks Marks. From fiscal year 2000 to 2003, Starbucks spent over $136 million on advertising, promotion, and related marketing activities, essentially all of which featured the Starbucks Marks. Starbucks actively polices the Starbucks Marks, demanding that infringing uses be terminated and, where necessary, commencing litigation.2 Well before Black Bear used the term “Charbucks” as part of any product name, the Starbucks Marks were “famous” within the meaning of the FTDA. See
Black Bear manufactures and sells roasted coffee beans and related goods via mail and internet order, at a limited number of New England supermarkets, and at a single New Hampshire retail outlet. In 1997 Black Bear developed a coffee blend named “Charbucks Blend“; it now sells a dark-roast сoffee called “Mister Charbucks” or “Mr. Charbucks.” When Black Bear began manufacturing coffee using the Charbucks Marks, it was aware of the Starbucks Marks. One of the reasons Black Bear used the term “Charbucks” was the public perception that Starbucks roasted its beans unusually darkly.
Soon after Black Bear began to sell Charbucks Blend, Starbucks demanded that it cease using the Charbucks Marks. Black Bear nevertheless continued to sell coffee under the Charbucks Marks, and in 2001 Starbucks started this action claiming, among other things, trademark dilution in violation of
In December 2005 the District Court ruled in favor of Black Bear and dismissed Starbucks’ complaint. See Starbucks Corp. v. Wolfe‘s Borough Coffee, Inc., No. 01 Civ. 5981, 2005 WL 3527126 (S.D.N.Y. Dec. 23, 2005) (”Starbucks I“). The District Court determined that there was neither actual dilution, which would establish a violation of federal trademark law,7 nor a likelihood of dilution, which would establish a violation of New York trademark law.
Starbucks appealed. While the appeal was pending, Congress passed the Trademark Dilution Revision Act of 2006 (“TDRA“), which amended the FTDA to clarify that the owner of a famous mark seeking an injunction need prove only that the defendant‘s mark “is likely to cause dilution . . . of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.”
In determining whether a mark or trade name is likely to cause dilution by blurring, the court may consider all relevant factors, including the following:
- The degree of similarity between the mark or trade name and the famous mark.
- The degree of inherent or acquired distinctiveness of the famous mark.
- The extent to which the owner of the famous mark is engaging in substantially exclusive use of the mark.
- The degree of recognition of the famous mark.
- Whether the user of the mark or trade name intended to create an association with the famous mark.
- Any actual association between the mark or trade name and the famous mark.
On remand, after further briefing, the District Court again ruled in Black Bear‘s favor for substantially the same reasons set forth in its earlier opinion, but it also analyzed the federal dilution claim in light of the TDRA. See Starbucks Corp. v. Wolfe‘s Borough Coffee, Inc., 559 F. Supp. 2d 472, 475–79 (S.D.N.Y. 2008) (”Starbucks III“). In particular, the District Court considered the six non-exclusive factors listed in the statute and made the following findings: (1) the marks were minimally similar, which the court deemed alone sufficient to defeat Starbucks’ claim; (2) (a) the distinctiveness of the Starbucks Marks, (b) the exclusivity of their use by Starbucks, and (c) their high degree of recognition, all weighed in favor of Stаrbucks; (3) the intent factor weighed in Black Bear‘s favor because Black Bear‘s intent to create an association with the Starbucks Marks did not constitute bad faith; and (4) evidence from Mitofsky‘s survey was “insufficient to make the actual confusion factor weigh in [Starbucks‘] favor to any significant degree.” Id. at 477–78 (quotation marks omitted). Balancing all six factors, the District Court held that the record was “insufficient to demonstrate the requisite likelihood that the association arising from the similarity of the core terms is likely to impair the distinctiveness of Starbucks’ mark, and Plaintiff is not entitled to injunctive relief under that statute.” Id. at 478.
Starbucks appealed again, arguing that the District Court erred in finding that the Charbucks Marks are not likely to dilute the Starbucks Marks. In Starbucks IV, we examined the District Court‘s findings as to the first, fifth, and sixth factors, as well as its balancing of the statutory factors thаt bear on the likelihood of dilution by blurring. We held that “the District Court did not clearly err in finding that the Charbucks Marks were minimally similar to the Starbucks Marks,” 588 F.3d at 106, because the context of the Charbucks Marks (on Black Bear‘s packaging, on its website, and in the phrases “Charbucks Blend” and “Mister Charbucks“) differentiated them from the famous marks. We concluded, however, that “the District Court erred to the extent it required ‘substantial’ similarity between the marks,” id. at 107, and we suggested that the District Court had overemphasized the similarity factor. In particular, we stated that the inclusion of “the degree of similarity” as only one of six factors in the revised statute indicates that even a low degree of similarity would not categorically bar a dilution-by-blurring claim. Id. at 108.
Emphasizing that the analysis of a dilution by blurring claim must ultimately focus on “whether an association, arising from the similarity between the subject marks, ‘impairs the distinctiveness of the famous mark,‘” id. (quoting
In its opinion and order following that remand, see Starbucks Corp. v. Wolfe‘s Borough Coffee, Inc., No. 01 Civ. 5981, 2011 WL 6747431 (S.D.N.Y. Dec. 23, 2011) (”Starbucks V“), the District Court recognized that the second through fifth statutory factors8 favored Starbucks. Id. at *3 (citing Starbucks IV, 588 F.3d at 106–10). But the court again found that the first factor (the similarity of the marks) favored Black Bear because the marks were only minimally similar when presented in commerce—that is, when the Charbucks Marks are viewed on the packaging, which includes the phrases “Charbucks Blend” or “Mister Charbucks.” Id.
As for the sixth factor (actual association), the District Court acknowledged that the results of the Mitofsky survey “constitute evidence of actual association,” id. at *4, but it then significantly discounted those results on the ground that the survey inquired into associations only with the isolated word “Charbucks” and failed to present the Charbucks Marks in full context, id. The court also compared the survey results in this case with those in оther cases. Here, it noted, only 30.5 percent of respondents associated “Charbucks” with “Starbucks,” while in other trade dilution cases 70 percent to 90 percent of survey respondents associated the relevant marks. Id. The District Court also compared the 3.1 percent of respondents who thought a product called “Charbucks” would be made by Starbucks to the 28 percent of respondents who made a similar origin association in a Ninth Circuit trademark dilution case. Id. (citing Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 636 (9th Cir. 2008)). With the benefit of these comparisons, the District Court found that the actual association factor weighs “no more than minimally” in Starbucks’ favor. Id.
In evaluating the likelihood of dilution, the District Court emphasized the “association” and “similarity” factors. Citing the TDRA‘s definition of dilution by blurring as “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark,” the District Court explained that “[t]he statutory language leaves no doubt” that these two
[T]he Charbucks marks are only weakly associated with the minimally similar Starbucks marks and, thus, are not likely to impair the distinctiveness of the famous Starbucks marks. In other words, [Starbucks] has failed to carry its burden of proving that [Black Bear‘s] use of its marks, as evidenced on the record before the Court, is likely to cause dilution by blurring.
On appeal, Starbucks challenges both the factual findings of minimal similarity and weak association and the conclusion that it failed to demonstrate a likelihood of dilution.
DISCUSSION
A. History of Federal Trademark Dilution Law
“Federal law allows the owner of a ‘famous mark’ to enjoin a person from using ‘a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark.‘” Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 110–11 (2d Cir. 2010) (quoting
Dilution by blurring as a cause of action was championed initially by Frank Schechter in a 1927 law journal article. See Frank I. Schechter, The Rational Basis of Trademark Protection,
the gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name by its use upon non-competing goods. The more distinctive or unique the mark, the deeper is its impress upon the public consciousness, and the greater its need for protection against vitiation or dissociation from the particular product in connection with which it has been used.
Heeding Schechter‘s warning, some States passed antidilution statutes. See 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 24:77 (4th ed. 2012) (“McCarthy“); Derenberg, supra, at 452–61. For example, the legislative history of New York‘s antidilution statute “disclosed a need for legislation to prevent such ‘hypothetical anomalies’ as ‘Dupont shoes, Buick aspirin tablets,
In 2003, however, the Supreme Court decided Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003), which held that the FTDA required a plaintiff to prove “actual dilution,” not simply a “likelihood of dilution,” in order to establish a trademark dilution claim. Id. at 433. In response, the International Trademark Association (“INTA“), a primary advocate for the FTDA, supported a congressional amendment to abrogate Moseley. The proposed amendment, which eventually became the TDRA, provided that plaintiffs need prove only a likelihood of dilution and, thus, allowed famous mark owners to “prevent dilution at its incipiency” and not force them to “wait until the harm has advanced so far that . . . the recognition of the mark . . . is permanently impaired” in order to sue. Committee Print to Amend the Federal Trademark Dilution Act: Hearing Before the H. Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 108th Cong. 10 (2004) (“2004 Hearing“) (statement of Jacqueline A. Leimer, INTA); see McCarthy § 24:96. At congressional hearings in 2004 and 2005, witnesses criticized the Moseley decision as “essentially sa[ying] you have got to wait until the horse is gone, and then the only thing you can do is close the barn door.” Trademark Dilution Revision Act of 2005: Hearing on H.R. 683 Before the H. Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 109th Cong. 18 (2005) (“2005 Hearing“) (statement of Mark A. Lemley, William H. Neukom Prof. of Law, Stanford Univ.); see also 2004 Hearing, at 44, 46–47 (statement of David C. Stimson, Chief Trademark Counsel, Eastman Kodak Company).
Although a number of witnesses testified at the hearings, the hearing statements of Anne Gundelfinger, then-President of the INTA, are considered a primary source of the legislative history of the TDRA. See McCarthy § 24:96. During her tеstimony, Gundelfinger explained that the association between marks needed only to be “likely to impair the distinctiveness of the famous mark in the marketplace.” 2005 Hearing, at 12. Gundelfinger also proposed a list of six factors that would “go to the question of whether the famous mark‘s distinctiveness in the marketplace will be blurred by the junior use.”
President Bush signed the TDRA into law in 2006.
B. Standard of Review
After a bench trial on a claim for trademark dilution by blurring, where the district court evaluates and balances the factors listed in the TDRA, we review the court‘s determinations as to each factor for clear error and its balancing of those factors de novo. See Tiffany, 600 F.3d at 101; Starbucks IV, 588 F.3d at 105.10
Accоrdingly, the District Court‘s factual findings regarding each factor bearing on the likelihood of trademark dilution by blurring will not be disturbed unless “on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed,” United States v. Oehne, 698 F.3d 119, 121 (2d Cir. 2012) (quotation marks omitted), while the balancing of those factors to determine the likelihood of dilution is a legal exercise subject to de novo review. To determine how to conduct the balancing, we look first to the language of the statute. See Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 48 (2d Cir. 2012).
Under
We previously have declined to treat the factors pertinent to a trademark dilution analysis as an inflexible, mechanical test, suggesting instead that the importance of each factor will vary with the facts. Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 227–28 (2d Cir. 1999), abrogated on other grounds by Moseley, 537 U.S. at 433. Accordingly, we need not consider all six statutory factors listed in
C. Factual Findings: The Statutory Factors
On appeal, Starbucks challenges two of the District Court‘s findings: (1) that
1. Degree of Similarity
In Starbucks IV we held that “[w]ith respect to the first factor—the degree of similarity between the marks—the District Court did not clearly err in finding that the Charbucks Marks were minimally similar to the Starbucks Marks.” 588 F.3d at 106. We highlighted the difference between the Starbucks Marks and Charbucks Marks when the latter are placed in the context of Black Bear‘s packaging and the word “Charbucks” is incorporated into the phrases “Charbucks Blend” and “Mister Charbucks.” Id. “The law of the case ordinarily forecloses relitigation of issues expressly or impliedly decided by the appellate court.” United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002) (quotation marks omitted). Although not binding, the doctrine “counsels a court against revisiting its prior rulings in subsequent stages of the same case absent ‘cogent’ and ‘compelling’ reasons such as ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.‘” Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)). Starbucks advances no compelling reason for us to revisit our ruling on the issue of similarity. It urges that the holding in Starbucks IV applied only to our “likelihood of confusion” analysis, and that the District Court erred by considering the contexts in which consumers encounter the Charbucks Marks.11 We reject such a crabbed view of the holding and adhere to our prior ruling that the District Court did not clearly err in finding minimal similarity.
2. Actual Association
Starbucks next contends that the District Court‘s finding that actual association “weighs no more than minimally” in Starbucks’ favor, Starbucks V, 2011 WL 6747431, at *4, was error for two reasons. First, Starbucks argues, Black Bear‘s admitted intent to create an association—the fifth statutory factor—raises a “presumption of association,” or at least is strong evidence of actual association—the sixth statutory factor. Second, it argues that the District Court improperly discounted the Mitofsky survey evidence, which, in Starbucks’ view, proves a high degree of actual association. We reject both arguments.
a. Intent to Create an Association
As an initial matter, an intent to create an association is a separate factor under the TDRA and does not constitute per se evidence that the actual association factor weighs in favor of the owner of the famous mark.12 In support
of its argument to the contrary, Starbucks quоtes McCarthy‘s treatise, which states, “If the junior [user] intended to create an association,
Both Federal Espresso and McCarthy‘s treatise acknowledge the importance of the intent factor in determining likelihood of dilution. This makes sense, as district courts must evaluate whether a junior mark is “likely to cause” “association arising from the similarity” between the marks “that impairs the distinctiveness of thе famous mark,”
That said, “we interpret statutes to give effect, if possible, to every clause and word and to avoid statutory interpretations that render provisions superfluous.” United States v. Al Kassar, 660 F.3d 108, 124–25 (2d Cir. 2011) (quotation marks omitted). Adopting Starbucks’ presumption argument would effectively merge the intent to associate and the actual association factors, by making the former determinative of the latter, rather than treating them as distinct but related considerations. We therefore conclude that the District Court did not clearly err in finding that Clark‘s testimony concerning the origin of the Charbucks Marks was not an “admission” of actual association and that his intentions were not definitive proof of an actual association between the marks.
b. Mitofsky Survey
Nor did the District Court err when it discounted the Mitofsky survey evidence because the survey measured only how respondents reacted to the isolated word “Charbucks,” rather than to the Charbucks Marks in context, and because the share of respondents who indicated an association between the marks was “relatively small.” Starbucks V, 2011 WL 6747431, at *4. We arrive at this conclusion for two reasons.
First, it coheres with our decision in Starbucks IV, in which we discerned no clear error in the District Court‘s consideration of context—including the addition of “Mister” or “Blend” to “Charbucks” and Black Bear‘s packaging—in assessing the marks’ similarity, as consumers are likely to experience the product only in the context of those full phrases and Black Bear‘s packaging or website. Starbucks IV, 588 F.3d at 106. In our analysis of Starbucks’ infringement claim, we similarly determined that the District Court did not clearly err when it found (1) that the survey failed to demonstratе significant actual confusion, “[p]articularly in light of the fact that the survey was administered by telephone and did not present the term ‘Charbucks’ in the context in which Black Bear used it,” id. at 117, and (2) that the survey should have examined the effects of “a hypothetical coffee named either ‘Mister Charbucks’ or ‘Charbucks Blend‘” on the respondents’ impressions of Starbucks coffee as a measure of dilution by tarnishment, id. at 110.
Second, our conclusion also comports with our prior precedents and other cases unrelated to Starbucks. In Playtex Products, Inc. v. Georgia-Pacific Corp., 390 F.3d 158 (2d Cir. 2004), a case interpreting the pre-revision FTDA, we held that the results of a consumer survey showing an
Citing our decision in Nabisco, Starbucks nevertheless argues that consumers are likely to hear and view the term “Charbucks” outside the context of Black Bear‘s packaging and without the full phrases “Mister Charbucks” and “Charbucks Blend.” Nabisco, 191 F.3d at 218 (rejecting an argument under the pre-revision FTDA that packaging made two marks dissimilar, because many consumers would see the marks outside of the packaging). But Starbucks presented no record evidence that “Charbucks” is ever read or heard in isolation,13 and in the absence of such evidence, we are not persuaded by the argument. To the contrary, as we noted in Starbucks IV, “it is unlikely that ‘Charbucks’ will appear to consumers outside the context of its normal use,” 588 F.3d at 106, and “it was not clearly erroneous for the District Court to find that the ‘Mister’ prefix or ‘Blend’ suffix lessened the similarity between the [marks],” id. at 107.
Starbucks also challenges the District Court‘s finding that the association between “Charbucks” and Starbucks was “relatively small.” It contends that the Mitofsky survey in fact provided evidence of substantial actual association. We disagree.
It is true that in response to Mitofsky‘s question most probative of actual association—“What is the FIRST THING that comes to your mind when you hear the name ‘Charbucks,’ spelled C-H-A-R-B-U-C-K-S?“—30.5 percent of respondents said “Starbucks,” and 9 percent said “coffee.” Both of these responses suggest an association between “Charbucks” and the Starbucks Marks. In Jada Toys, 518 F.3d at 636, for example, the Ninth Circuit held that a survey demonstrated actual association because it showed that 28 percent of respondents thought Jada‘s product was made by Mattel when asked who they thought produced the item. Here, however, the equivalent question in Mitofsky‘s survey was: “Can you name any company or store that you think might offer a product
Ultimately, on this factor, we consider only whether the District Court clearly erred when it found that the Mitofsky survey tilts the “actual association” factor “no more than minimally in [Starbucks‘] favor.” Id. Had the Mitofsky survey presented the Charbucks Marks as they appear in commerce, we might well conclude that the District Court erred. But the word “Charbucks” was presented outside of its marketplace cоntext, and Starbucks, which bears the burden of proof, see Jada Toys, 518 F.3d at 634, failed to show that this flaw did not materially impact the survey results. We therefore conclude that the record supports the District Court‘s decision to discount the survey and consider the actual association factor as weighing only minimally in Starbucks’ favor.
D. Balancing
We next balance the factors enumerated in
We have already affirmed the District Court‘s finding of minimal similarity between the Charbucks Marks and the Starbucks Marks. That finding weighs heavily in Black Bear‘s favor. Certainly, a plaintiff may show a likelihood of dilution notwithstanding only minimal similarity. But here, minimal similarity strongly suggests a relatively low likelihood of an association diluting the senior mark. The statute itself emphasizes the similarity of marks. See
Although the three factors of distinctiveness, recognition, and exclusivity favor Starbucks and bear to some degree on our assessment of the likelihood of dilution by blurring, the more important factors in the context of this case are the similarity of the marks and aсtual association. We agree with the District Court that the distinctiveness, recognition, and exclusive use of the Starbucks Marks do not overcome the weak evidence of actual association between the Charbucks and Starbucks marks. To the contrary, viewed in light of Starbucks’ fame, both globally and among the Mitofsky survey participants more particularly, the fact that more survey participants did not think of “Starbucks” upon hearing “Charbucks” reinforces the District Court‘s finding that the marks are only minimally similar, and therefore unlikely to prompt an association that impairs the Starbucks Marks. Likewise, although the distinctiveness and exclusive use of the Starbucks Marks help Starbucks prove susceptibility to dilution by association arising from similarity between the Charbucks and Starbucks marks, they do not demonstrate that such an association is likely to arise, as Starbucks needed to show to obtain an injunction. Accordingly, these factors weigh only weakly in Starbucks’ favor.
In this case, we attribute a moderate amount of significance to the fifth factor, intent to create an association. Clark‘s testimony indicated that Black Bear was capitalizing on an historic connection between the word “Charbucks” and “Starbucks,” which arose out of the so-called “coffee-wars” in Boston, Massachusetts, see Starbucks IV, 588 F.3d at 111, and that he “meant to evoke an image of dark-roasted coffee of the type offered by Starbucks,” Starbucks V, 2011 WL 6747431, at *5. “[W]here, as here, the allegedly diluting mark was created with an intent to associate with the famous mark,” Starbucks IV, 588 F.3d at 109, we agree with the District Court that this factor favors a finding of a likelihood of dilution, see Starbucks V, 2011 WL 6747431, at *3, 5.
The final, disputed factor, actual association, is highly relevant to likelihood of association. In the analogous context of determining the “likelihood of confusion” for trademark infringement claims, we have noted that “[t]here can be no more positive or substantial proof of the likelihood of confusion than proof of actual confusion,” even though a showing of actual
Weighing the factors above de novo, we agree with the District Court that Starbucks did not demonstrate a likelihood of dilution by blurring. Ultimately what tips the balance in this case is that Starbucks bore the burden of showing that it was entitled to injunctive relief on this record. Because Starbucks’ principal evidence оf association, the Mitofsky survey, was fundamentally flawed, and because there was minimal similarity between the marks at issue, we agree with the District Court that Starbucks failed to show that Black Bear‘s use of its Charbucks Marks in commerce is likely to dilute the Starbucks Marks.
CONCLUSION
We have considered all of Starbucks’ contentions on this appeal and have concluded that they are without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.