The International Association of MacHinists and Aerospace Workers, Afl-Cio v. Winship Green Nursing Center
103 F.3d 196
1st Cir.
1996
Check Treatment

*1 through permission fendant’s interference with it im overly brief, long to file an we means; proper plain may motive or special assess subsequently costs if we advantage directly resulting tiffs loss of from conclude that length the extra was unneces- the defendant’s conduct.” American sary Private help.”). and did not ap- “We believe it Servs., Microwave, Inc., Line Inc. v. Eastern propriate discourage filing of exces- Cir.1992) (citing United id., sively long court,” briefs and we Geltman, Leasing Corp. Truck 406 Mass. appropriate believe it discourage parties (1990)). N.E.2d attempting from to flaunt page limits submitting improper briefs with spacing. line Implicit in the require above Accordingly, against we assess double costs ments for intentional interference in a busi appellants. relationship ness relationship is that the lawful. Country Golf, See Chemawa

Wnuk, 9 Mass.App.Ct. 402 N.E.2d (1980) (requiring eomplained-of that the

acts be damage “calculated to cause

plaintiffs in (emphasis their business” lawful added)). Plaintiffs-appellants argue that de

fendants-appellees interfered with a business

relationship that allegedly consisted of un lawful in exchange kickbacks for business. INTERNATIONAL ASSOCIATION such, As relationship question business OF AND MACHINISTS AEROSPACE lawful, plaintiffs was not cannot recover WORKERS, AFL-CIO, al., Plaintiffs, et their claim. Appellants, Accordingly, we the district court’s affirm dismissal of against Count III Laudon and CENTER, WINSHIP GREEN NURSING

Thibodeau. al., Defendants, Appellees. et Y. CONCLUSION No. 96-1206. herein, For the reasons discussed we af- United Appeals, the district States Court of court’s dismissal on all firm appealed by claims First Circuit. plaintiffs-appellants: defendants, against RICO count all I Count July Heard 1996. against defendants, all Counts III and IV against Thibodeau, Laudon and Count V Decided Dec. (and against Hasbro and noting Hassenfeld that plaintiffs-appellants failed to raise the

liability Thibodeau), of Laudon and against

Count VI Hasbro.

Finally, we plaintiffs-ap note that

pellants overly have filed an long Al brief.

though the brief is permissible less than the

fifty pages, it spaced is not double as re

quired, 32(a), Fed.RApp.Proe. making the length

effective considerably the brief

longer. Additionally, we are able to find no length

reason Despite of the brief.

the extra length, the brief failed to ade

quately present appellants the claims of clearly

even to identify being ap the claims

pealed. M.S.V., Inc., re

(1st Cir.1989) (“[W]hether grant or not we *2 infringer.

fered See International Nurs Ass’n Machinists Green (D.Me. Ctr., 1996). affirm, appeals. The Union al ground. beit on a different
I. BACKGROUND light present basic facts in the flattering party vanquished most summary judgment. All events the relevant to occurred in and all dates refer year.

A May In the Union mounted a to organize nonprofessional employees facility Bath, Winship’s Not sur- Maine. prisingly, management resisted this initiative Schneider, Mark with whom M. West John employees and exhorted the affected to vote Kaiser, P.L.L.C., Washing- Bredhoff & and against IAM’s election as a collective bar- ton, DC, brief, appellants. were on for gaining representative. part As of its retort O’Meara, Winship pieces of cam- L. hand-delivered two Richard with Charles P. whom Piacentini, putative paign employees literature to in the Murray, Murray, Jr. and Plumb & Portland, ME, brief, bargaining unit. These form the appellees. handouts were on IAM’s basis for lawsuit. * SELYA, Judge, Before Circuit TORRES Winship July 1. The First Flier. dis- ** SARIS, Judges. and District flier, three-page page tributed a the first rhetorically: which asks SELYA, Judge. Circuit WOULD IF WHAT YOU DO YOU GOT case, In this eccentric the International THE ATTACHED LETTERS? Aerospace Association of Machinists and BE YOU ABLE FIND AN- WOULD TO (IAM Union) charged employ Workers JOB? OTHER (Win- er, Winship Nursing Green Center YOU PAY HOW WOULD YOUR BILLS? Act, ship), violating with the Lanham - YOU WOULD WISH THAT THE MA- (1994), §§ through its un U.S.C. HAD UNION NEVER GOT- CHINISTS propa use of authorized a service mark AT TEN IN WINSHIP GREEN? ganda organiz during disseminated a union campaign.1 granted The recipients district court The then advises flier that “IT’S Winship’s motion disposition, for brevis rea LATE” implores NOT TOO and them to soning satisfy that the to managers] Union’s claim failed “GIVE named A [certain jurisdictional requirements the Lanham Act’s CHANCE” AU “VOT[ING] NO ON (1) parties letters, competing because were not GUST 4.” addressed individual ly employees for the sale commercial particular and dated one Winship’s admittedly election, year comprise use of unauthorized scheduled after mark pages was connection with services offered and third second of the flier. One markholder of- purports rather than services letter be written Union’s on the * Island, sitting by desig- Corp. Corp.) Of the District of Rhode and First Healthcare are codefend nation. presence par ants. Since of these additional ** Massachusetts, sitting by desig- appeal, Of the District of ties does not affect the we issues on treat (as nation. litigation only as if it involved the Union (as official, Hartford, plaintiff-appellant) Winship plain defendant 1. An IAM Dale also a tiff, (Hillhaven Winship appellee). and two affiliates of UNION, letterhead, of THE complete reproduction MACHINISTS DO NOT with BILL.” (consisting a set of PAY THIS mark IAM service gear and by a tools surrounded machinist’s Notwithstanding Winship’s or, tactics — name)2 signature the facsimile perhaps, due to them —the chose plenipotentiary, Dale Hartford. IAMan bargaining represen- IAM as their collective had suggests the Union missive This August in the tative election. obligation, pursuant of its notified agreement, bargaining an invented collective B recipient’s employment be- to terminate proved The Union a sore winner. It pay failure to certain assess- of her cause against Winship alleging filed suit inter soon fee). (e.g., union dues an initiation ments trademark and unfair com alia signed by Winship’s di- epistle, The other Act.4 The petition under Lanham Union *4 It operations, postdated. is rector of also theory premised its federal claims on Winship’s notice acknowledges receipt of the regis Winship’s that unauthorized use professes to inform the addressee and service mark “in connection tered occurred request. must honor company the Union’s services,” represen namely, ... IAM’s with remaining thereby transgressed 2. The Second Flier. tational literature, 32(1) 43(a) piece disseminated sections of the Lanham Act. 1125(a) election, 1114(l)(a) days urges §§ (quot a few before See 15 U.S.C. & 5). rejected against court to vote unionization ed note The district the reader infra theory previously for the men bring sig- this reasons membership union will warns that IAM, F.Supp. tioned. See 914 at 655-56. contains financial burdens. This flier nificant appeal This followed. pur- what inscribed on a simulated invoice (and ports IAM’s letterhead THE II. SUMMARY JUDGMENT STAN- mark). a IAM Under

bears the service DARD THE heading that reads “PAYABLE TO [employee’s BY UNION MACHINISTS Though ge case is the- unconventional name]”, designated invoice lists amounts legal apply-is standard must neric that we dues, fee, an and fines.3 as union initiation Summary appropriate prosaic. judgment is subtlety, Commentary, undiluted accom- cases, as else in trademark

panies listing: WHAT “NO MATTER where, pleadings, depositions, “if the answers HAS YOU—JUST THE UNION TOLD file, interrogatories, on to and admissions AT THE EMPLOYEES LOURDES affidavits, ASK together any, if show that with THE 13 AND ASK HOSPITAL” “JUST genuine as to material there is issue AT ELECTRIC EMPLOYEES GENERAL moving party fact and that is entitled a PORTLAND WHO WERE Ath judgment IN SOUTH a matter law.” Boston (1st Sullivan, FINED CROSSING THE PICKET v. F.2d FOR letic Ass’n 867 56(e)). Cir.1989) (quoting Gen Large, THERE.” letters at the Fed.R.Civ.P. LINE bold if proclaim: erally speaking, a “material” it the invoice ‘WITHOUT fact bottom of salmagundi complaint marks and function 4.IAM's also embodied 2. Service trademarks respec identify goods, the source of pendent services statelaw The district court claims. types tively. two The difference between the prejudice these claims without coinci- dismissed here, will not relevant and thus we marks is entry summary judgment on dent with the apply involving law form. See Star case either IAM, See at 656. federal claims. 914 Servs., Corp., Mortgage v. 89 Fin. Inc. AASTAR pursuing these We understand the Union 5, (1st Cir.1996); Volkswagenwerk n. 1 F.3d 8 Finally, separate action. claims in a state cotut Wheeler, Aktiengesettschaft F.2d 815 sought complaint injunctive under relief 1987). (IstCir. 1n. Act, §§ 29 U.S.C. Norris-LaGuardia (1994), infirmity the Union concedes the but now only apocryphal amounts 3. The stated are not request. of this organizing extravagant. During also but drive, repeatedly would that there declared monthly fee and be no initiation that no worker's $20. dues would exceed suit, potentially affects the outcome of the see lie from confusion anent the actual source of Inc., Drug, Servs., Garside v. Osco 895 F.2d 48 goods or services. Fin. Star (1st Cir.1990), dispute “genu and a over it is Mortgage Corp., AASTAR 89 F.3d positions ine” if parties’ (1st on the are Cir.1996); issue Int’l, DeCosta v. Viacom evidence, supported by conflicting Inc., (1st Cir.1992), 981 F.2d cert. Inc., Liberty Lobby, Anderson v. 477 U.S. denied, 242, 250, 106 2505, 2511, 91 L.Ed.2d 202 (1993); McCarthy, L.Ed.2d 725 3 J. Thomas inquiring While court is con McCarthy on Trademarks and Com Unfair strained light to examine the record in the (3d 1996). petition § 23.01 ed. The Lanham summary judgment most favorable to the Act Generally speaking, is cast this mold. opponent and to resolve all reasonable infer proscribes the Act the unauthorized use of a favor, party’s ences see Hachikian v. particular service mark when usage FDIC, Cir.1996), 96 F.3d defeat respect causes- a likelihood of with confusion properly documented motion for sum identity provider.5 of the service mary judgment requires jin more than the Ass’n, WCVB-TV Boston Athletic goistic brandishing of a cardboard sword. (1st Cir.1991); see also Societe Des especially respect This is true in to claims or Nestle, Helvetia, Inc., Produits S.A. v. Casa n issues which the nonmovant bears the (1st Cir.1992) (explaining proof; burden of in such circumstances she respect “only trademarks that ap those reliably specific “must demonstrate that facts *5 propriations likely ... to cause confusion are sufficient to an dispute create authentic ex prohibited”). Consequently, likelihood of Garside, 48; ist.” 895 F.2d at see also dispositive inquiry confusion often is the in a Anderson, 256, 106 477 U.S. at at 2514. S.Ct. See, WCVB-TV, Lanham Act e.g., case. 926 44; Pignons F.2d at Mecanique S.A. de de review, de novo the district court’s 482, Precision v. Corp., Polaroid 657 F.2d grant summary judgment. of See Mack v. (1st Cir.1981). 492 it Co., So is here. Great Atl. & Pac. Tea 871 F.2d (1st Cir.1989). Moreover, appellate an tribu by nal-is not bound the lower court’s ratio B may entry judgment

nale but affirm the of any independent ground in rooted the record. To demonstrate likelihood of confu See, Hachikian, 504; e.g., 96 F.3d at Gar (or sion a claiming by, markholder one side, 895 F.2d at 49. her) through, or under must show more than possibility the theoretical of confusion. See III. ANALYSIS Robertson, American Steel Foundries v. 269 analysis proceeds parts. Our in five 372, 382, 160, 162-53, U.S. 46 S.Ct. 70 L.Ed. confusion); 317 (requiring probable A Star, (requiring 89 F.3d at 10 of evidence a Trademark confusion); and unfair com- substantial likelihood of accord 3 petition largely protect pub- McCarthy, laws exist supra, § 23.01[3][a]. Just as one 32(1) 1114(1) governs § Section of the Lanham (emphasis supplied). Act in- 15 U.S.C. Sec- 43(a) fringement governs stipulates competition pertinent It tion unfair claims. in claims. It stipulates pertinent part: part: in who, Any person any on or in connection with shall, Any person who without the consent of services, any or ... uses in commerce registrant— word, term, name, symbol, or device ... or (a) any reproduction, use in commerce any designation origin false of ... which— counterfeit, copy, or colorable of a (A) imitation likely confusion, to cause or to cause sale, registered mistake, mark in connection with the origin, or to deceive as to ... sale, distribution, offering sponsorship, approval or person’s] or [such goods, any goods or or services on or in connection commercial activities person another ... likely with which such use is to cause confu- sion, by any shall be a mistake, deceive; person liable in civil action or to cause or to ... who believes that he or she is or is regis- shall be liable in a civil action damaged by such an act. trant. ... 1125(a) (emphasis supplied). 15 U.S.C.

201 (1st Cir.1983). 1201, forest, 1205 No one an isolated 718 F.2d constitute tree does not probable determinative, prove confusion does listed factor and' instance of contrary, long has the law To the tendency confusion. factor that has a to influence the allegedly in showing that demanded impression conveyed prospective purchas- with it a likelihood conduct carries fringing may allegedly infringing conduct ers number of rea confounding appreciable an weighed by judge jury gauging exercising ordi sonably purchasers prudent completely the likelihood of confusion. We Fleming, 96 U.S. nary See McLean care. agree with the authors the Restatement (1877); 245, 251, Mushroom 24 L.Ed. 828 mechanistic formula list can set “[n]o Makers, Barry Corp., 580 F.2d v. R.G. Inc. variety of factors that forth advance denied, (2d 44, Cir.1978), cert. 439 U.S. 47 marketing particular contribute to the (1979); 1022, L.Ed.2d 75 99 S.Ct. use.” context of actor’s Restatement Inc., Beverages, Crest Co. Snow Coca-Cola (Third) Competition § 21 emt. a of Unfair denied, Cir.), cert. (1995). L.Ed. 386 68 S.Ct. course, means, result that confusion This points worth mak Two related are carelessness, consuming public’s ing from the First, ing. the listed factors must because See, indifference, ennui will not suffice. context, any meaningful in be evaluated Cases, Less, More or e.g., States v. 88 United of confusion neces quiry into the likelihood Orange Beverage, 187 Containing Bireley’s sarily replicate must the circumstances (3d Cir.) (inferring that “the F.2d ordinary actually con consumer contemplated the reaction legislature (or confront) probably fronts will the conflict nor is neither savant ordinary person who Vining mark. Libman Co. v. dolt, ... a normal mea who exercises [and] Cir.1995), (7th judgment”),Indus., Inc., layman’s common sense sure of the — denied, U.S.-, denied, rt. rt. ce ce (1951); Indianapo see also (1996); 96 L.Ed. 648 Dog Black 135 L.Ed.2d *6 Colts, Metropolitan Baltimore lis Hall, Tavern Co. v. (7th Ltd., 34 F.3d Football Club (D.Mass.1993). Second, places a Rule 56 Cir.1994) Lanham Act (explaining that analytic ap gloss upon usual special gullible fringe of “protect the most does not summary judgment review proach. On consuming public”). the evidence ing court must decide whether whole, hospitably to the a taken most as typically eight factors consider markholder, as to generates a triable issue (1) the sim assessing of confusion: likelihood Sullivan, 867 likelihood of confusion. See (2) marks; similarity ilarity of the of the Astra, 1205; 29; also 718 F.2d at F.2d at case, (or, ser in a mark service that, (observing § 23.11 (3) McCarthy, supra, vices); par relationship between the (4) analysis, trade; governs the juxtaposition legal precedent while ties’ channels (5) pro by the advertising; the classes'of case is controlled of their the result of each (6) facts). of actu purchasers; the evidence spective totality of its (7) confusion; intent the defendant’s al that Applying principles, we conclude these mark; infringing adopting allegedly its adducing here of bears the burden the Union strength plaintiffs mark. See Anderson, evidence, probative” “significantly Sullivan, Star, 10; at 29. at 249-50, at 2510-11 106 S.Ct. 477 U.S. conform compendium does not While this (citation omitted), that an tending to show ease, it is easily peculiar facts of this to the prospective voters number of appreciable all-encompassing not intended to be either (i.e., bargaining employees the defined within CBS, Inc., 520 See DeCosta v. exclusive. unit) likely to be confused in fact were denied, Cir.1975), cert. F.2d believing service-marked that the misled into 856, 47 L.Ed.2d 83 sent, or produced, campaign literature was are meant to be The listed factors not has by LAM. The Union authorized Pharmaceutical guides. See Astra used Instruments, Inc., Prods., plateau. this reached v. Beckman Inc.

C commitment to dissuade the voters from “purchasing” Put those services. another As we set the scene for the main thrust way, knowledge as to the source of the mate- analysis, acknowledge our we that the cam- dispels incipient rials confusion. paign stump stage playing is an odd for out a attempts The Union to confess avoid. typical Lanham Act In drama. commer- recipients’ It ability contends that to setting, cial confusion as to the source ascertain the source the documents does goods or services occurs when there is an necessarily negate confusion. This con- unacceptably high buyer may risk that a hinges theory employees tention on the that purchase product one or service in the mis- letters, may thought have even if buying a taken belief she different company, delivered actual were Star, product or service. 89 F.3d at procured Winship documents which and then But off the instant case is well the beaten draped in anti-union invective. But that the- entrepreneurs track. It does not involve two ory patently, does not fit the facts: this is vying competing products to sell or services neither an employer instance which an Rather, in the traditional sense. IAM was copies previously distributes of a notice sent and, angling represent to the workers al- a union to elsewhere and adds effort, though Winship opposed that it was commentary, anti-union nor one which an offering seeking provide neither nor employer makes minor emendations to an similar service. the vernacular of the union document. The letters and .authentic marketplace, “selling” IAM was its services composed the invoice are around names and prospective Winship union members and indigenous particular circumstances to this “selling” negative was lack of a need —the organizational Among things, effort. service-provider. such services significant the letters bear a date in its rela- significant implications This twist has for a election; they tion to the scheduled address court’s assessment of the likelihood of confu Winship employee each name and home assume, Union, favorably If sion. we to the address; they identify employer. confusion as the source the docu specific Source-identifiers bearing ments mark the IAM service pervasive election are even more in the ficti- indirectly prospective purchasers least deter tious invoice. (voters unit) bargaining within the from' ac for) quiring (voting representational IAM’s position The Union’s fallback if, only that, that deterrent will exist seems to if even it is nose-on-the- *7 that, purchas plain to the extent confusion causes face that the letters and the invoice are replicas genuine materials, ers to be misinformed about the nature not the value of the services. We think it follows affected still have believed that, inexorably readily they if the electorate can genuine that somehow were based on identify Winship pro as the source of the materials. think We this construct is both materials, legally motional the deterrent factually unsupported. unsound and vanishes. See, e.g., McIntyre place, recipient’s v. Ohio Elections In the first ability to — Comm’n, U.S.-,-n. recognize alleged infringer, S.Ct. that at a minimum, 1519 n. 131 L.Ed.2d 426 substantially must have added to (suggesting people that once know the source or altered a document alleviates confu writing, they of a message, can evaluate its sion as to its immediate source. Warner Cf. and, Bros., point, Cos., at that “it is for them to decide Broadcasting American (2d valuable, Cir.1983) responsible, what is what is (suggesting truth”) (citation what is quota similarity and internal that lack of substantial leaves “lit omitted). event, tion marks asserting there is tle basis” for likelihood of confu claim). misleading letters, genesis as to in sion a Lanham Act In the second place, the voters can assess indulging arguendo assump whether Win- even ship-authored accurately handouts describe tion that the contrived documents were services, or, instead, merely scenario, the Union’s are based on a real the alterations are Winship’s sufficiently a manifestation ordinary recipi- no-holds-barred that an extensive fining imposed by the truth. intelligence, restraints ent, a modicum of possessing NLRB, Corp. F.2d 117 recognize that Baumritter help but not could (1st Cir.1967) substantially (explaining docu inaccuracies with the tampered so had longer perceived indigenous campaign propaganda be in they could no are ments that milieu). In other the Union.6 emanating from the labor relations The acrimonious as words, credibility would de parties the documents’ literature disseminated both indi- of whether exception on the voters’ assessment pend cates that this was no McIn telling the truth. See Winship was the rule.7 - — n. at tyre, knowing (discussing value of n. 11 D purpose identity for the of the source” “the Having tapes woven the contextual con judging truthfulness of ideas try against which the Union’s claims must be therefore, conclude, writing). in a tained viewed, we turn now to the octet of factors documents, long that as regard to these

with typically inform the likelihood of confu au either who employees can ascertain as configuration strange sion. of this While substantially modified the lit or who thored case renders certain of those factors irrele erature, readily recognize en they will or, least, apply square vant difficult to — letters, (including the one tire document pegs snugly fit in round holes —we never case) invoice, case, the second complete make the effort in the interest of position they will be propaganda, and Moreover, ness. relevant circum accuracy accordingly. gauge its degree compensate stances to some for this recognition takes emphasis This on source intersperse through lack of fit and we them juxtaposi setting and the into account the circum out our discussion. We deem such Labor-management re parties. tion of the great importance especially stances to be of since Justice lations have not mellowed precisely here because this case falls well rep ago that three decades Clark observed customary the Lan outside the confines of ordinarily campaigns “are resentational ham Act. characterized frequently ... heated affairs Similarity of Marks. The service charges, counterc and extreme bitter similar; by Winship merely not rumors, mark used vituperations, harges, unfounded photocopied reproduction. accusations, it is misrepresentations and identical —a personal Still, similarity basis of is determined on the Plant Guard distortions.” Linn United effect, see, Pig Am., designation’s total Workers Local additional, (1966). nons, 660-61, (considering 657 F.2d at 487 15 L.Ed.2d 582 printed goods crossing source-identifying words exaggeration, Because sometimes falsehood, packaging), staple in and substantial differences outright is a the line into exist, though (i.e., “does campaigns, “consumers” affected such workers) very simi likely marks identical and on notice that both sides are lar, indicates no regard [likeli- con- when the evidence with scant for the will embellish Suits, *8 pling Infringement analogous principle copyright Fla.St.U.L.Rev. in law is in- 6. An copyright (1993) (noting greater Absent direct evidence of likelihood of fair structive. 158-59 plaintiff prove infringement, "substantial must copyright an cases if alterations render use in copyrighted similarity” contest- between the recording unrecognizable). original music See, Corp., e.g., Corp. NEC v. Intel ed materials. U.S.P.Q.2d 1989 WL 67434 example, flier of the “when did 7. For one IAM (N.D.Cal.1989). applicable test is "whether The your variety, you stop beating asks: wife?” having recognized by an observer as the work is LIES OR HALF TRUTHS "WHAT DOPES Id., copyrighted source.” been taken from the DURING OUR WINSHIP] PLAN TO SPREAD however, copied, 1184. Even if a work is materials also describe DEBATE?" The IAM copyright if substantial exists anticipated "company in tactics” or "tricks” changes unrecognizable. the work See v. render employees unflattering and warn terms (9th Cir.1983) (affirm- Durang, 711 F.2d TRAPS.” The "LOOK OUT FOR CORPORATE ing grant summary judgment for the defen- above, literature, speaks Winship for discussed 1186-87; dant); U.S.P.Q.2d Corp., NEC cf. Johnson, itself. Copyrights: The Need A. Dean Music Appropriate Analysis Digital in Sam- Fair Use by Burrough sponsorship Ltd. v. of handbills circulated a union confusion].” hood of James Inc., Beefeater, Sign bearing employer print the trademark in bold Cir.1976). (7th more, line, What is we have rec the first followed union identifiers of ognized that in equal prominence). certain circumstances other are con wise similar marks not 3-5. Channels of Trade and Advertis- they conjunction fused if are used in with ing; Prospective Classes of Purchasers. names, clearly displayed logos or other Following precedent, Equine circuit source-identifying designations manu of the Inc., Technologies, Equitechnology, Aktiebolaget facturer. Electrolux v. Ar (1st Cir.1995), F.3d 546 n. 5 we address Int’l, Inc., matron Cir. next in the three factors the ensemble. The Here, 1993); Pignons, 657 F.2d at 487. parties’ widely dispa- are channels trade lengthy propagandists message Winship (reduced essence, rate to bare IAM sells printed large type in on the fictitious invoice representational services whereas conspicuous, easily and the identifiable fliers beds), nursing sells home and there is no it sent to introduce the letters dilute the evidence that the channels those might inference that otherwise be drawn services are similar. similarity from between the marks. sure, To be as the election Similarity of Services. Because the steam, picked up parties propagandized both parties competing do not offer there (and, advertised) sense, through in that Furthermore, no similitude. even if is (print), same medium and both of them tar- abstract, documents are evaluated in the we geted exactly narrowly-defined the same ca- any person, do not think that reasonable prospective dre of individuals. The class of viewing entirety them in their and in con- purchasers necessarily restricted to those materials, junction accompanying with the is, therefore, Still, individuals and identical. would find them similar to IAM’s authentic identically does not advance the Union’s campaign literature. special in cause circumstances of this hand, case. any similarity the one On to actual tone, IAM materials is limited to the vitriolic point, requisite inquiry On this mark, presence LAM of the service merely determining not limited whether hand, signature. the facsimile On other prospective purchasers the class of is the any communication, genuine unlike Instead, same or different. a court called postdated by year letters are a full and ad- upon assay likelihood of confusion must employees they already dress the as if had class, ponder sophistication there union, opted representation. favor of by taking account of the context which the (the invoice) piece propaganda next con- alleged infringer uses the mark. messages longer tains anti-union that are and Astra, 1206-07; HQ 718 F.2d at Network much prominent more than other text. Sys. Headquarters, v. Executive And, moreover, in stark contrast to handbills (D.Mass.1991). Here, or invariably urged distributed IAM which ganizational began May. Among effort (i.e., union), “yes” to vote for a things, open meetings the Union held rabidly letters at issue were attached to anti- periodic and sent the affected “orga workers exhorting employees union fliers to vote “no” Thus, nizing updates.” July late —when union). (i.e., short, against a bogus Winship began challenged to distribute the letters, compared McCoy, when to the real persons within thé class could documents — appearance are distinctive and antithetical help ongoing campaign know of the but dissimilarities, gross

in content. Given such its excesses. *9 reasonably it cannot be inferred that ordi- narily prudent presume workers would be must the class intelligence, confuse the source of the letters. Senco See members are of normal see Mc Prods., Lean, 251; Inc. International Union Elec. Larger 96 U.S. at Church of of Workers, (S.D.Ohio Fellowship, Unitarian Universalist v. Con Found, 1970) Inc., (finding no likelihood Eng., of confusion as to servation Law New of (D.Mass. 869, 873, not establish the existence of actual confusion 1983 WL 52338 U.S.P.Q. 1983), inquiries electioneer if the nature of the indicates that previous months’ degree given perceive them a certain a ing would have consumers difference between the sense sophistication. designations skeptical Common of enforced and are of the exis- group users.”). all others— that this dictates tence of a connection between the —above through the the rivals’ claims would filter thing, skepticism particular- For another Linn, 383 U.S. knowledge. seine of Cf. ly rampant wise—as to claims made in —and 60-62, (discussing at 662-63 at any organizing the course of drive. inaccurate of abusive and NLRB’s toleration organizing struggle course of this drive —a organizational cam during made statements hyper- than which incited more its share of ap agreeing that the ultimate paigns and bole on both sides—class members had am- must be left to the praisal of such statements ple skeptical. They reason to be must have elections). voting in the good sense of those known that distributed fliers especially Accordingly, class members were (which letters), they embodied the there- Winship’s unlikely unautho to be misled fore knew that the letters had to be viewed mark. rized use of the IAM light Winship’s of motivation. In all proffers Dale 6. Actual Confusion. events, forearmed, Miguel forewarned is mainstay of its Hartford’s affidavit as the Cervantes, Quixote de Don de la Mancha evidence) (indeed, solitary piece its of case (circa here, 1615), and, the Union disseminat- actual confusion. The affidavit the issue of early going predicting ed literature briefly employees asked states that “several” management stoop would to dubious tac- in fact written the whether Hartford had tics. signature.8 It also re- letter that bore his employee questioned whether ports that one question about dues is an even thinner required pay dues $300 she would be inquiry prob- A does not indicate reed. lone opines a initiation fee. Hartford $200 appreciable able confusion of an number of had to have figures seem to have “these Makers, purchasers. See Mushroom apocryphal invoice].” union [the come from inquiry— Regardless, 47. this lone F.2d at evidence, alone, standing is insufficient This questioned veracity predic- of the prove actual confusion. concerning dues —does not indi- tion union ficti- cate confusion as to the source of the problem with the Hart- The fundamental at 490 Pignons, tious invoice. See that, taking its contents ford affidavit is even expressing true, (finding letter sur- consumer’s literally it does not undermine what compet- reading prise perceived affiliation between perfectly from a of the obvious prove ordinary prudence companies “clearly insufficient” to person record: no confusion). intelligence, hap- of what was normal aware actual her, pening have been confused around would persuade us strives to The Union sponsorship of the letters. as to the source or that, paltry how the evidence no matter inquiries thing, For one to which Hart- confusion, adequate to actual it is nonetheless employees reveal at most that ford alludes summary judgment where testing on survive whether he would have written doubted accept all inferences fa we must reasonable very cause he had letter unfavorable to the not con We are face, vorable to nonmovant. promote. labored to On their these summary purpose The core vinced. actual confusion as to inquiries do not evince “pierce the boiler judgment procedure is to jury-rigged of the documents. the source (Third) proof plate pleadings” and evaluate Competi- Restatement of Unfair (1995) (“Evidence trial serve whether a will inqui- to determine cmt. c tion Wynne Sch. purpose. Univ. plaintiff useful by customers as to whether the ries Tufts (1st Cir.1992), Med., associated ... and the defendant are persons consequently, not name either the Although could Hartford recalled that these state- approximately inquiry made front of ten or those who over- ments were who made of him meeting, he claimed queries. union heard the and, of attendees that he could not locate list *10 206 denied, 1030, 1845, importance alleged infringers’

cert. 507 U.S. 113 S.Ct. contem- (1993). Consequently, disclaimers, sum poraneous 123 L.Ed.2d 470 offer to broadcast mary judgment sidestepped cannot they be making thus clear that were not official pointing merely to that is evidence colorable sponsors product). of the trademarked see, Mack, suggestive, F.2d at 871 template of this is similar that ease see, substance, or evidence that lacks Winship incorporated of the bo- WCVB-TV. Co., e.g., Mesnick v. General Elec. 950 F.2d gus prominently display- documents in fliers (1st denied, Cir.1991), cert. 504 822 commentary containing anti-union (1992), 112 S.Ct. 119 L.Ed.2d 586 pleas by managers against named for votes incredible, see, inherently that is evidence addition, unionization. In the fake invoice (1st Joost, e.g., United States v. 92 F.3d conspicuous itself includes what amounts to a Cir.1996). circumstances, disclaimer. Under no instance, In this the Union submitted no conclude, reasonable factfinder could not- any personal from affidavits individuals who withstanding Winship’s purposeful misappro- literature,9 ly campaign received the and we mark, priation of service inherently implausible think that it is to infer company intended to mislead inquiries from the described Hartford about the source of the handouts. prospective actually voters were con Strength. 8. Under the Lanham Act fused as to the source of the materials. The strong enjoy greatest protection marks summary judgment paradigm requires us to against infringement. Aktiebolaget, See inferences; respect only draw and reasonable 5; Pignons, F.2d at F.2d at 492. The we need not infer that which is farfetched robust, having IAM service mark is been Stone, Sheinkopf fantastic. See 927 F.2d duly registered widely promoted for over (1st Cir.1991); Medina-Munoz v. mark, thirty years. muscularity But the of a (1st Co., Reynolds R.J. Tobacco F.2d itself, in and of does not reheve the mark- Cir.1990); Raskiewicz v. Town New Bos prove holder of the burden to a realistic ton, denied, Cir.), cert. Aktiebolaget, likelihood of confusion. See 88 L.Ed.2d 111 5; Pignons, F.2d at 492. Be- (1985). Here, documents, the face of the utterly produce cause the Union has failed to fliers, accompanying the environment burden, evidence sufficient to meet distributed, they were and the lack of supra, strength carry the mark’s cannot significantly probative actual evidence of con day. fusion combine- render -unreasonable the inference that IAM would have us draw. E heavily 7. Intent. IAM relies on the giving weight After due to each factor and principle alleged infringer that when an in- considering unique trademark, circumstances that tentionally copies it necessarily analysis, inform our presumed that we find no she intended to cause confu- confusion, Sullivan, profit thereby.10 colorable basis for a likelihood of sion and See and, hence, trialworthy Lanham presumption inappo- F.2d at 34. But Act reaching persua- site in situations claim. In this conclusion where there is no we stress Here, significance sive setting. evidence of intent to use the mark to the factual WCVB-TV, suggest sponsorship. powerfully official the ambiance im- See influenced the (attaching pression conveyed by 926 F.2d at 45-46 Winship’s considerable unauthorized fact, point only presumption such affidavit in the 10. This rebuttable works maxi- with employee Snipe— efficiency setting. record—that of an named Gail mum in the commercial There, unequivocally "recognized infringer typically copies states that she all of a trademark my employer's campaign palm recog- ... materials off her own those manufacturer, thereby riding materials.” She adds: face “The docu- nized free on the reputation goodwill. well gen- ments as as the context in which the docu- markholder's presented erally McCarthy, supra, presump- ments were made it clear that the 25.01. The employer, materials were from the tion works less well in that do not cases involve competitors. the IAM." *11 relies, parties’ primarily authorities on which she mark. The see of the IAM service use inflamed the post, political for the election this case neither a preparations involves manage- enmity labor and campaign parody policy between nor a historic concerns —the the communications dis- undergird fortify ment and colored her views our resolve climate protagonists. The token, tributed both By special to hold the like line. inevitably to view with conditioned voters circumstances that the district court de- party any made either suspicion claims IAM, length, scribed at suspicion peaked the other. This about 653-56—such as the noncommercial nature election, shortly and that is when before the use, any of the unauthorized absence of offending documents surfaced. More- competition parties repre- in between the documents, received, over, were when market, and sentational services the fact that clearly management affixed to identifiable Winship appropriate mark did not for use additional, cir- propaganda. These relevant any “in connection with” of its own— services any persuasively against cumstances counsel point go in the same direction.11 need We possibility of confusion as to the realistic further. sponsorship of the mismarked liter- source or Affirmed. ature. SARIS, Judge, concurring. District IV. CONCLUSION ground Winship I concur on in Considering the record as a whole in Green’s misuse of the union’s trademark summary judg- light most favorable to the campaign during its literature the union elec- loser, that there is no triable ment we hold tion not a commercial use of the mark It of fact as to likelihood of confusion. issue 43(a) adumbrated Sections 32 or of the simply inconceivable that who Act, amended, Lanham as 15 U.S.C. challenged literature at received the 1114(1), §§ fiercely organizing height disputed of a union would, upon cursory glance, even a apt be to believe that IAM either distributed I any way meaningful or contributed alleges The union Green’s vociferously tracts. these anti-union during use of its trademark the election vio- employer postscript. add a wins 43(a) of Lanham lated Sections 32 and appeal, but not our admiration. While Act. strongly disapprove Winship’s misap- we mark, however,

propriation of IAM’s service A the Union has other available remedies Linn, Act Section 32 of the Lanham concerns that infraction. redress infringement” proscribes (approving at 662 state- “trademark circumstances). remedy registered trademark analogous misuse of another’s law sale, part, unwilling “in connection with the offer For our we are to stretch commerce distribution, sale, advertising simply ing Lanham Act into unfamiliar contours any goods or services on or in connection punishing for the sake of conduct that we confu deplore. willing with which such use is to cause While we are venture mistake, sion, or to deceive.”12 quite far into uncharted waters as our or to cause as 1114(1)(a)(1994). all, § concurring colleague unlike the 15 U.S.C. —after Act, amended, concurring opinion's 12. Section 32 of the Lanham 11. We take no view of the pertinent part: states in suggested holding, grounds on which the shall, ruling, Any person the consent premised who without district court its or the other registrant— judg- urged by Winship support theories (a) any reproduction, in commerce use the Union's case ment below. While counterfeit, copy, of a or colorable imitation fronts, the absence of vulnerable on several sale, registered mark in connection with the meaningful renders comment confusion further sale, distribution, offering for supererogatory. any goods services on or in connection person’s B or services. U.S.C. 1125(a)(1)(1994); Trademark Law see also *12 43(a) protection, provides broader Section Act, 100-667, § 102 Revision Pub.L. by competition” use of prohibiting “unfair Healthcare, (1988); Stat. 3946 U.S. Pesos, mark, Two any registered or not. See Philadelphia, 898 F.2d Blue Cross Greater Cabana, Inc., 763, 768, of Inc. v. Taco (3d Cir.1990) (discussing 921 effect of (1992). 2753, 2757, 120 L.Ed.2d 615 Act); McCarthy amendment to Lanham 1988 43(a) types of activities: prohibits two Section Trademarks, § supra, at The 27.02[4]. on origin,” 15 designations “false of U.S.C. Report accompanying Senate Committee (A)”) 43(a)(1)(A) (“Prong § and “false de ” explained the need for this addi- amendment 43(a)(1)(B) (“Prong § scriptions, 15 U.S.C. tion to the Act as follows: (B)”).13 Components, Inc. v. K-H Truck See (N.D.Ill.1991); however, area, Corp., F.Supp. important 409 3 776 In one McCarthy, McCarthy Trade apply Thomas on J. courts have refused to the section. and, § Competition decision, 27.02[3] marks Based on a 1969 seventh circuit Unfair (3d 1996) history (discussing 43(a) of the “two ed. the courts have held that Section 43(a)— 43(a)(1)(A)) (“trade § prongs” §of applies only misrepresentations about 43(a)(1)(B) (“false § infringement”) and mark services; products one’s own and it does advertising”). misrepresentations about not extend vices. Typical a new trademark Prong origin claims under 15 U.S.C. (A)14 or sponsorship prohibits prong § was 1125(a)(1)(A) (1994). false of (A) confusingly designations goods would involve or ser- simi- of nard Food Indus. v. Dietene competitor’s products or services. Ber L.Ed.2d cert. denied, USPQ USPQ [264] 265 (7th Co., Cir.1969), agrees illogi one, committee that this effect is already lar to an established or an at- practical public policy and “palm-off’ goods cal on both lev tempt by a defendant to its public deterring competitor policy as those of a use of the com- els and that the of petitor’s Components, competition Truck of unfair will be served if mark. See acts Trademarks, 43(a) 409; McCarthy on is amended to make clear Section (describing § supra, misrepresentations these claims 27.02[4] about another’s infringement”). as “trademark products misrepresen as are as actionable tations about one’s own. (B) contrast, protection prong under (1988), Cong., S.Rep. No. 100th 2d Sess. very Following is different. its amendment 5577; (B) reprinted in liability 1988 U.S.C.C.A.N. prong creates for mis- Trademarks, McCarthy supra, at representations advertising also on commercial or “nature, characteristics, (stating § co- promotion as to the 1988 amendment 27.02J4] 43(a): geographic origin” prongs” “part § qualities or of another dified “two of one mistake, (A) likely likely with sion, such use to cause confu- to cause or to deceive mistake, affiliation, connection, as to the or associa- or to cause or to deceive ... person person, such tion of with another or origin, sponsorship, approval as to the or of services, goods, his or her or commercial registrant in a shall be liable civil action person, or activities another provided.... for remedies hereinafter (B) advertising promotion, in commercial or 1114(1) (1994). § 15 U.S.C. nature, characteristics, misrepresents qualities, geographic origin or of his or an- Act, amended, 43(a) 13. Section of the Lanham as services, person's goods, or commer- pertinent part: states in cial activities. designations origin § False 1125. person of by any false shall be liable in a civil action descriptions forbidden who believes that he or she is or is (a) (1) who, Any person Civil action. or in damaged by such act. services, any goods any connection with or 1125(a) (1994) (emphasis origi- § 15 U.S.C. goods, any uses in container for commerce nal). word, term, name, device, symbol, any thereof, (1) designation Congress redesignated paragraphs false combination In 1992 43(a) (A) origin, misleading description subparagraphs false or and (B). of section 27, 1992, 102-542, fact, 3(c), misleading representation or false or Oct. Pub.L. fact, which'—(cid:127) 106 Stat. 3568. trademark, unregistered relating] company misrepresented to ... dence that the and trade dress tradename union’s services be sufficient for the claims, part relating] two to ... false fact-finder to find confusion as to the “na- libel) claims”). (as ture, characteristics, qf well as trade qualities” [or] (B) Thus, prong prohibits misrepresentations union’s I summary would not allow quality about defendant’s own judgment (B) company prong under goods misrepresentations where the ground on the a lack of confusion. —even goods do not to confuse its with those of tend competitor origin Ill or otherwise misstate the misrep well as affirmative *13 —as A ground summary firm for judgment, it products. resentations about another’s me, seems to is that the Lanham Act creates (cit Components, F.Supp. Truck 776 at 409 liability no deception because the did not ing Litigation, In re Uranium Antitrust 473 occur in connection with commercial sales or (N.D.Ill.1979)); F.Supp. 408 see also (cid:127) advertising, required Act, as under the but Trademarks, McCarthy § on supra, 27.04 rather in hand-outs. (describing prima elements of facie case un protects only against The Lanham Act cer- (B)). prong der tain commercial uses of trademarks. Sec- governs tion 32 registered of a use mark II sale, commerce ... in “in connection with the agreement majority in I am with the sale, distribution, offering advertising for or origin sponsorship allegedly of the any goods or services.” 15 U.S.C. infringing documents was never in doubt. 1114(l)(a) (1994). 43(a) § Section is likewise 43(a) respect Lanham With to section commerce,” limited to uses of marks “in 15 (A) Act, prong inapplicable is because there 1125(a)(1) (1994), § U.S.C. Act de- evidence, contention, or even that the using fines as displaying or a mark in the company used the union’s mark to deceive advertising goods services,15 sale or or bargaining unit members as to the affiliation (1994). And, § 15 U.S.C. 1127 section company union or with the as to the 43(a)(1)(B) misrepresentation limits claims to sponsorship of its services the union. involving those eases “commercial advertis- Quite contrary. 1125(a)(1)(B) promotion.” § or 15 U.S.C. However, there is evidence that (1994). Green used the union’s trademark to misre appellate directly While there is no ease on present the characteristics and nature of the point, rejected trial courts have efforts to (i.e., union’s services the amount of union extend the Lanham Act to cases where the purportedly dues or the draconian results of using displaying defendant is not them), pay thereby implicating failure to sale, trademark in the or adver distribution (B), prong governing descriptions. false Cf. tising of its or services. Lucas- Four, Energy Sys Inc. v. Dornier Medical Frontier, High Ltd. v. tems, Inc., (N.D.Ga. F.Supp. 622 F.Supp. 765 730 film (D.D.C.1985) 1991) (rejecting 934 n. 2 the claim (describing misrep cause of action for 43(a)(1)(B) advertising companies could be held lia resentation under Section and col cases); Consol., lecting using ble for Agri Brandt the trade name “Star Wars” in (C.D.Ill. Corp., F.Supp. political policy mar 801 174 debate a national over 1992) (same); Trademarks, McCarthy only su because the trademark laws reach activ (same). § pra, at 27.04 Because this evi- ities in which a trademark is used connec- 15. 15 U.S.C. 1127 states in commerce, pertinent part: are rendered in or the services services are in more than one State The term "use in commerce" rendered means the bona ordinary foreign country a fide use of mark in the course of United States and a trade, merely right and not made a person reserve rendering and the is en- services purposes chapter, in a mark. For of this a gaged in commerce in connection with the mark shall be deemed to be in use in com- services. merce— (2) on services when it is used or sk sale or -k advertising [*] [*] of services and the [*] displayed [*] property limited Accordingly, the union’s selling services tion with defendants); against Act com right, under the Lanham or noncommercial commercial impli is not States misuse of its trademark Olympic Prison United mercial Stop the Comm., F.Supp. generally Olympic in this case. See cated Lucasfilm (“It (S.D.N.Y.1980) (expressing Ltd., serious doubts F.Supp. at 933 is well estab applies Lanham Act right property whether that the conferred lished limited.”). Olympic trademark deceptive use of the very the un While trademark Olympic group opposing the conversion company’s complains about the rightfully ion “there prison, part because facilities into a tactics, remedy find its federal unfair it must alleged deception suggestion that the is no under the deceptive campaign literature any goods or ser was in connection with Act, Relations 29 U.S.C. National Labor Communications, vices”); Inc. v. En Reddy seq. §§ 141 See Linn United et Found., Action vironmental Am., Local Plant Guard Workers of (D.D.C.1979) (rejecting claim that en 657, 662, 15 L.Ed.2d 582 energy of an group’s caricature vironmental action under state (permitting libel the Lanham industry service mark violated defamatory published statements law for company prove failed Act where organization campaign and during a union *14 group the service used the environmental authority National Labor discussing of its “identify promote” the sale mark to Board to set aside elections where Relations Bean, L.L. Inc. generally publications); see misrepresented in has been “a material fact Publishers, Inc. 811 F.2d v. Drake campaign; opportunity representation Cir.1987) (holding a state anti-dilution under lacking; misrep reply has been and the use parody was not a commercial state that impact had an on the free resentation has publisher “did plaintiffs mark because in the employees participating choice of the identify or market Bean’s mark to not use election”). consumers”), de cert. or services reaches the same con- Because the Court nied, reasons, join I clusion for somewhat different L.Ed.2d 753 judgment. in its Nonetheless, some forms of union-related activity may constitute commercial sale protected under the Act.

advertising that is Holding, Inc. v. e.g., Brack Van Houten Chicago, 856

Save Brach’s Coalition for (N.D.Ill.1994) (finding applicable un protection Lanham Act where Plaintiff, Joaquim CONDE, Appellee, company logo in connection with ion used v. of its buttons and stick sale and distribution INC., Defendant, I, STARLIGHT support of donations to ers and solicitation Appellant. plant closing to a opposition coalition’s confusion as to the and was to cause CONDE, Plaintiff, Appellant, Joaquim of, with, approval company’s affiliation Corp. proposals); Marriott defendant’s Council, AFL-CIO, INC., Defendant, I, Am. Trades STARLIGHT Great Serv. (7th Cir.1977) (rejecting Appellee. that the National La the union’s contention 96-1089, Nos. 96-1209. jurisdic Board had exclusive bor Relations Appeals, United States Court infringe for trademark tion over an action First Circuit. Act where arising under the Lanham ment company’s allegedly the union used Heard Nov. suggest in advertisements which trademark 9, 1997. Decided Jan. company ed an affiliation between pro the union in its services However, com

spective employees). such activity simply present here.

mercial