207 U.S.P.Q. 12
FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
The Squirt Company
v.
The Seven-Up Company et al.
District Court, E. D. Missouri, E. Div.
No. 78-375C (A)
Decided Sept. 6, 1979
United States Patents Quarterly Headnotes
TRADEMARKS
[1] Marks and names subject to ownership -- Descriptive
-- Misdescriptive or not descriptive -- Particular marks
(§ 67.5078)
Name "Quirst" is coined, fanciful term having no meaning
in English language.
TRADEMARKS
[2] Evidence -- Of confusion (§ 67.337)
Identity and similarity -- How determined -- In general
(§ 67.4051)
Infringement -- In general (§ 67.431)
Infringement -- Knowledge or intent (§ 67.437)
Pleading and practice in courts (§ 67.63)
Court, in order to determine whether there is likelihood of
confusion in trademark infringement case, must consider
numerous factors, including strength or weakness of
plaintiff's mark, degree of weakness of plaintiff's mark,
degree of similarity between two products, competitive
proximity of products, accused infringer's purpose in
adopting its mark, actual confusion, and degree of care
likely to be exercised by consumers; while each of factors is
essential to determination of likelihood of confusion
question, it is important that when applying these factors
that court keep in mind that they are variable and that no
single factor is determinative; they are variable and relative
and no single one, because of its presence or absence is, in
itself, determinative of case; rather, method of approach
requires trial court to consider and weigh evidence relative
to each of these points and such other points as it finds
applicable in particular circumstances before it; then, from
balancing of conclusions reached on all of these factors, it
decides whether or not parties are entitled to relief or
protection sought.
Page 1
TRADEMARKS
[3] Infringement -- In general (§ 67.431)
Marks and names subject to ownership -- Descriptive -In general (§ 67.5071)
Marks and names subject to ownership -- Descriptive -Misdescriptive or not descriptive -- Particular marks (§
67.5078)
"Squirt" is entitled to greater or broader degree of protection
because of its strength than is weak or commonplace mark.
TRADEMARKS
[4] Identity and similarity -- How determined -Appearance, meaning or sound (§ 67.4055)
Identity and similarity -- How determined -- Purchasers
and selling methods (§ 67.4071)
Both visual impression of trademark and sound of words are
important when dealing with products such as soft drinks
that are frequently sold in self-service grocery stores and
supermarkets; "Squirt" and "Quirst" must be compared for
similarity in appearance as well as in sound.
TRADEMARKS
[5] Identity and similarity -- How determined -- In
general (§ 67.4051)
Two marks should not be examined with microscope to
detect minute differences, but, on contrary, should be
viewed as whole.
TRADEMARKS
[6] Evidence -- Of confusion (§ 67.337)
Fact that approximately 45% of entire sample specifically
mentioned either similarity in sound between words "Squirt"
and "Quirst," or similarity between names "Squirt" and
"Quirst," without any prompting or suggestion whatsoever,
is affirmative evidence of definite likeness between two
marks as perceived by persons hearing two names together.
TRADEMARKS
[7] Class of goods -- Particular cases -- Similar (§
67.2073)
There is high degree of similarity between grapefruit
flavored carbonated soft drink and lemonade flavored
non-carbonated soft drink, both of which not only fall under
general category of "soft drinks," but also under heading of
"non-cola, fruit-flavored soft drinks."
COPR. © 2006 The Bureau of National Affairs, Inc.
207 U.S.P.Q. 12
FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
TRADEMARKS
[8] Identity and similarity -- How determined -Considering goods (§ 67.4057)
Degree of similarity in trademarks necessary to support
finding of infringement where products are virtually
identical is less than in case of dissimilar, noncompeting
products.
TRADEMARKS
[9] Class of goods -- How determined -- In general (§
67.2031)
Identity and similarity -- How determined -- In general
(§ 67.4051)
Identity and similarity -- How determined -- Purchasers
and selling methods (§ 67.4071)
Closeness of competition between two non-cola,
fruit-flavored soft drinks is shown by identities that in some
instances, they are being packaged by same bottler and/or
being distributed by same distributor, two products are
being offered for sale in common retail outlets, and, in fact,
in at least one grocery store or supermarket, they were
positioned on shelf next to one another, in marketing two
soft drinks parties are making use of same vehicles for
advertising, namely, television, radio, and newspaper, and
"thirst-quenching" characteristics of soft drink is theme
common to advertising of both of them, and both are
packaged in convenient 12-ounce aluminum cans.
TRADEMARKS
[10] Evidence -- Of confusion (§ 67.337)
Identity and similarity -- How determined -Considering other marks (§ 67.4059)
Infringement -- Knowledge or intent (§ 67.437)
Even though defendant was well aware of plaintiff's
trademark when it chose its name and was cognizant of
plaintiff's vigorous trademark protection policies prior to
final decision to proceed with its mark, court cannot say that
it was defendant's intent to pass their product off as being
manufactured by plaintiff in case in which fact that
defendant's product is defendant's is clearly spelled out on
face of its product directly below its mark and that its
survey commissioned prior to its mark selection indicated
that accused mark had much stronger connotation than four
other names it had selected for product -- a quality that it
Page 2
held critical in its marketing strategy.
TRADEMARKS
[11] Infringement -- Knowledge or intent (§ 67.437)
Indicator of alleged infringer's intent in selecting name is
amount of money he intends to or has already spent on
advertising and promotion of his product; when alleged
infringer selects mark very similar to well established, well
advertised mark that is held by plaintiff, and then attaches
that mark to product very similar or virtually identical to
product to which plaintiff's well established mark is
attached, and does not spend any money or very little
money in advertising his product, it is not unreasonable to
infer that alleged infringer selected his mark with specific
intent of profiting from plaintiff's reputation and advertising.
TRADEMARKS
[12] Evidence -- Of confusion (§ 67.337)
Evidence of actual confusion is not essential to finding of
trademark infringement; however, there can be no more
positive proof of likelihood of confusion than evidence of
actual confusion.
TRADEMARKS
[13] Evidence -- Of confusion (§ 67.337)
Identity and similarity -- How determined -Appearance, meaning or sound (§ 67.4055)
Episode in which individual mistook accused's television
commercial for trademark owner's is evidence of definite
likeness in sound that exists between two words.
TRADEMARKS
[14] Evidence -- Of confusion (§ 67.337)
Court cannot say that results of survey in which actual
purchaser is asked to list brands he has just purchased, and
then asked to display brands he has named, in order to
determine accuracy of his listed purchases demonstrate
existence of actual confusion between products as in
absence of any opportunity for surveyed party to be
cross-examined it is not possible to determine reasons for
three instances of plaintiff's mark being interchanged with
defendant's; unavailability of cross-examination of three
respondents is crucial fact that distinguishes Roto-Rooter
Corp. v. O'Neal, 186 USPQ 73, from present case.
COPR. © 2006 The Bureau of National Affairs, Inc.
207 U.S.P.Q. 12
FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
TRADEMARKS
[15] Evidence -- Of confusion (§ 67.337)
Fact that survey was conducted in live market environment
and measured actual consumer purchasing behavior as
opposed to being conducted in home and measuring
consumer opinion, lends greater reliability to survey results;
degree of attention of interviewee who is not in buying
mood but is just in friendly mood answering pollster is quite
different from that of interviewee who has his wallet in his
hand; many men do not take same trouble to avoid
confusion when they are responding to sociological
investigators as when they spend their cash.
TRADEMARKS
[16] Evidence -- Of confusion (§ 67.337)
Evidence that suggests that with respect to goods at issue
there is definite interconnection between similarity of name
and possible confusion supports theory that interchanges
that occurred between two brands were result of similarity
that exists between marks and not result of carelessness or
inadvertence on respondent's part.
TRADEMARKS
[17] Evidence -- Of confusion (§ 67.337)
Court cannot say that 4.3% (three out of seventy) level of
error between plaintiff's and defendant's soft drink products
is de minimus or statistically insignificant, when it is
considered in context of entire soft drink industry;
percentage of "likely confusion" required varies from case
to case.
TRADEMARKS
[18] Evidence -- Of confusion (§ 67.337)
Identity and similarity -- How determined -- Purchasers
and selling methods (§ 67.4071)
Survey offered in support of contention that likelihood of
confusion exists between two marks applied to two soft
drinks might well have been directed at general population
instead of just women 25 years of age or older who had
purchased any kind of soft drink on day of survey, as
practical matter, since almost anyone would be likely to
have purchased soft drinks at one time or another.
TRADEMARKS
[19] Evidence -- Of confusion (§ 67.337)
Page 3
There is no problem with manner in which interview in
which interviewers were instructed to record responses
verbatim was conducted; fact that there was at least twenty
percent verification of results in surveys conducted in two
cities insures that interview was accurately recorded by
interviewer.
TRADEMARKS
[20] Evidence -- Of confusion (§ 67.337)
Identity and similarity -- How determined -Appearance, meaning or sound (§ 67.4055)
Identity and similarity -- How determined -- Purchasers
and selling methods (§ 67.4071)
Visual impression of mark is very important when dealing
with products that are frequently sold in self-service grocery
stores because of fact that purchaser identifies and selects
product through his sense of sight; some visual
representation of two marks on such product, such as goods
themselves or photographs of them, should be displayed to
survey respondent so that visual comparison of two marks
can be made.
TRADEMARKS
[21] Evidence -- Of confusion (§ 67.337)
34% and 23% of respondents in two surveys who said
plaintiff's and defendant's soft drinks were put out by same
company are not insubstantial percentages and are some
evidence of likelihood of confusion.
TRADEMARKS
[22] Evidence -- Of confusion (§ 67.337)
Identity and similarity -- How determined -Appearance, meaning or sound (§ 67.4055)
It is significant that without any suggestion whatsoever
approximately 25% (114/476) of entire sample cited as basis
for their response to question as to whether survey
respondent thought defendant's and plaintiff's soft drinks are
put out by same or different companies a reason very
closely related to either similarity between names or
similarity between sounds of names or similarity in spelling
of two names; this is evidence of definite likeness or
similarity between marks as perceived by persons hearing
two names together.
TRADEMARKS
COPR. © 2006 The Bureau of National Affairs, Inc.
207 U.S.P.Q. 12
FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
[23] Identity and similarity -- How determined -Considering goods (§ 67.4057)
Identity and similarity -- How determined -- Purchasers
and selling methods (§ 67.4071)
Identity and similarity -- Words -- Similar (§ 67.4117)
It is reasonable to infer that relatively low degree of care
would be involved in purchase of two relatively low priced
brands of soft drinks since soft drinks tend to be purchased
on fairly frequent basis and thus be relatively routine type of
purchase as result of low cost and relatively short product
life after purchase, and grocery stores and supermarkets are
primary retail outlet for soft drinks, purchases being made
without assistance of any type of sales person and in
environment not particularly conducive to slow, thoughtful,
and deliberate purchasing process; this degree of care that
might be exercised by purchaser cannot eliminate likelihood
of confusion that might otherwise exist between "Squirt"
and "Quirst"; in fact, because of relatively low degree of
care likely to be exercised in purchase of "squirt" and
"Quirst," it is fair inference that likelihood of confusion
between two brands would be greater than with items in
which relatively high degree of care might be exercised in
connection with their purchase.
TRADEMARKS
[24] Identity and similarity -- Words -- Similar (§
67.4117)
"Quirst" for non-carbonated lemonade flavored soft drink is
likely to cause confusion with "Squirt" for carbonated
grapefruit flavored soft drink.
*15 Action by The Squirt Company, against The Seven-Up
Company and Seven-Up, U.S.A., Inc., for trademark
infringement, dilution, and contract interference. Judgment
for plaintiff.
See also 207 USPQ 9.
Armstrong, Teasdale, Kramer & Vaughan, and Frederick H.
Mayer, both of St. Louis, Mo., and Price, Heneveld,
Huizenga & Cooper, and Daniel Van Dyke, both of Grand
Rapids, Mich., for plaintiff.
Rogers, Eilers & Howell, John M. Howell, and Edmund C.
Rogers, all of St. Louis, Mo., for defendants.
Page 4
Harper, District Judge.
This action was filed April 7, 1978, for alleged infringement
and dilution of plaintiff's trademark rights and alleged
tortious interference with plaintiff and its franchisee's
contracts.
Plaintiff, The Squirt Company, was organized under the
laws of the State of California and maintains its principal
place of business therein. The defendants are Missouri
corporations, maintaining their principal places of business
in Clayton, Missouri. The jurisdiction of this Court exists
pursuant to 28 USC 1332 and 1338.
Plaintiff filed a motion for a preliminary injunction
requesting that defendants be restrained from:
"1. Introducing, using, distributing, manufacturing,
licensing and/or selling a soft drink or related product
in connection with the trademark 'QUIRST' or any
other confusingly mark similar thereto; and
"2. Printing, reprinting, publishing, promoting, lending
or distributing any advertisement or other material,
whether written, audio or visually portrayed, which use
or refer to the mark 'QUIRST' or any other mark
confusingly similar to the mark 'SQUIRT' in connection
with soft drink or related product."
A hearing was held on the motion for a preliminary
injunction and in a memorandum and order dated July 14,
1978, 207 USPQ 9, this Court denied plaintiff's motion for a
preliminary injunction.
In response to a motion filed by defendants, and joined in by
plaintiff, this Court, pursuant to Rule 42(b) of the Federal
Rules *16 of Civil Procedure, ordered that the issues of
liability and damages be separated and that the trial relate
only to the issue of liability.
This cause of action came on for trial before this Court
sitting without a jury on issues of liability only. The
pleadings, stipulation of facts, credible testimony, and
exhibits offered at the hearing of the motion for preliminary
injunction and at the trial on the merits, disclose that on
June 18, 1978, The Squirt Company amended its articles of
COPR. © 2006 The Bureau of National Affairs, Inc.
207 U.S.P.Q. 12
FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
incorporation to change its name to Squirt-Co, the
Certificate of Amendment having been filed with the
Secretary of State of California on June 21, 1978. For the
purpose of this memorandum, however, the plaintiff will
still be referred to as The Squirt Company.
The Squirt Company had duly registered and was the owner
of the trademark SQUIRT in several classifications on the
Principal Register in the United States Patent Office. The
Squirt Company's registrations cover the word SQUIRT
alone, and the word SQUIRT with accompanying words or
designs. The Squirt Company is the duly registered owner
of the following United States trademark registrations:
Trademark Registration No. 367,659, registered May
23, 1939, for the trademark SQUIRT imposed on a
splash design, on nonalcoholic grapefruit drink and
bases and syrups and extracts for making the same
(Plff's Ex. 1).
Trademark Registration No. 388,777, registered July 8,
1941, for the trademark SQUIRT, on fresh citrus fruits
and canned fruit juices for food purposes (Plff's Ex. 2).
Trademark Registration No. 410,117, registered
November 7, 1944, for the trademark SQUIRT, on
nonalcoholic grapefruit drink and bases and syrups and
extracts for making the same (Plff's Ex. 3).
Trademark Registration No. 528,806, registered August
8, 1950, for the trademark SQUIRT, on nonalcoholic
maltless beverages sold as soft drinks and bases and
concentrates and syrups and extracts for making the
same (Plff's Ex. 4).
Trademark Registration No. 689,587, registered
December 8, 1959, for the trademark SQUIRT on free
form design on soft drink and bases for making the
same (Plff's Ex. 5).
Trademark Registration No. 748,123, registered April
16, 1963, for the trademark SQUIRT on free form
design, on soft drinks and the bases and syrups for
making the same (Plff's Ex. 6).
Trademark Registration No. 771,971, registered June
Page 5
23, 1964, for the trademark SQUIRT, on soft drinks and
the bases and syrups for making the same (Plff's Ex. 7).
The parties further stipulated that Squirt-Co is the owner of
the SQUIRT trademarks and the goodwill associated
therewith and the owner of U.S. Trademark Registration
Nos. 367,659, 388,777, 410,177, 528,806, 689,587, 748,123
and 771,971.
Finally, The Squirt Company asserts common law
trademark rights in the phrase, "Never an After Thirst,"
through long and continuous use of such phrase as applied
to soft drinks, syrups, extracts and mixes for marketing the
same.
Since 1937, The Squirt Company through its predecessors
in business has been engaged in growing grapefruit and
principally engaged in the business of producing and
marketing grapefruit concentrate, bases, syrups and extracts
for carbonated nonalcoholic soft drinks prepared in
accordance with its proprietary specification and formula by
franchise bottling, canning and selling agencies throughout
the United States and abroad. In the field of production, The
Squirt Company's primary business has been the
manufacture of a soft drink base derived from fresh
grapefruit. To be more specific, The Squirt Company first
processes fresh grapefruit into grapefruit juice and then
processes the juice into a grapefruit concentrate. From the
concentrate is produced a soft drink base which is sold by
The Squirt Company to SQUIRT franchise bottlers who
utilize the soft drink base in the production of SQUIRT, a
carbonated grapefruit flavored soft drink. In addition,
through contract canners, The Squirt Company
manufactures and sells to its franchised bottlers canned and
bottled SQUIRT. A "contract canner" is a soft drink
manufacturer that has canning lines, and under a standard
arrangement The Squirt Company provides the canner with
a certain inventory of the finished product SQUIRT, and for
a fee the canner packages the product. After the SQUIRT is
packaged, The Squirt Company sells it to its franchisees. At
the time of this cause of action The Squirt Company has
approximately 230 franchised bottlers.
In addition to production, The Squirt Company has assumed
an active role in the marketing of products bearing the
COPR. © 2006 The Bureau of National Affairs, Inc.
207 U.S.P.Q. 12
FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
SQUIRT name. Pursuant to agreements with its franchised
bottling and selling agencies, *17 The Squirt Company has
engaged in extensive advertising on a national basis and
also participates in certain local advertising programs for the
purpose of publicizing and selling the beverage SQUIRT.
Since the year 1940, The Squirt Company has expended
approximately forty-five million dollars for advertising and
sales promotion. The advertising undertaken by The Squirt
Company has been in the form of point of purchase
displays, as well as media advertising, including radio,
television, outdoor posters, magazines and newspapers.
Some of the slogans which have been employed by The
Squirt Company in the marketing and advertising of the soft
drink SQUIRT are as follows:
1. "Put a Little Squirt in Your Life." (Plff's Ex. 17)
2. "Our Secret Ingredient Grows on Grapefruit Trees."
(Plff's Ex. 13)
3. "Switch to Squirt, Never an After Thirst." (Plff's Ex. 27)
4. "Squirt, The Soft Drink That Moonlights as a Mixer."
(Plff's Ex. 13)
5. "Squirt, From the Land Where Thirst Comes Tall." (Plff's
Ex. 51)
6. "Squirt Quenches Quicker." (Plff's Ex. 47)
7. "Switch from Sweet to Squirt." (Plff's Ex. 44)
8. "Squirt, From the Land Where Thirst Comes Big." (Plff's
Ex. 52)
9. "Squirt, When You're Thirstier Than Usual." (Plff's Ex.
32)
10. "Smoother Together -- Squirt & Gordon's Vodka."
(Plff's Ex. 23)
Turning to the product itself, SQUIRT is a carbonated
grapefruit base soft drink that is opaque in color. The
ingredients of SQUIRT are as follows: Carbonated water,
corn sweetener, grapefruit juice, citric acid, oil of grapefruit,
and finally, benzoic acid.
Page 6
SQUIRT brand drinks are sold not only in the United States,
but are also sold in Canada, Mexico, Panama, Cost Rica,
Bolivia, Luxembourg and Angola. The foreign sales
represent approximately fifty percent of The Squirt
Company sales.
With respect to the retail distribution of SQUIRT in the
United States, it is currently available for sale, at retail, in at
least one market in some thirty-eight states. In terms of
volume of sales, the principal retail outlet of the soft drink
SQUIRT is the grocery store. However, the product is also
offered for retail sale at package liquor stores, recreational
facilities such as bowling alleys and golf courses, bars or
taverns, and finally, in vending machines located at
businesses such as service stations and motels, just to name
a few. For the year 1977, the approximate total retail sales
volume of the soft drink SQUIRT was $54,407.891.00.
(Plff's Ex. 87.)
Turning to the packaging of the soft drink SQUIRT, it is
sold at retail in returnable bottles (ranging in size from 32
ounces to 7 ounces), non-returnable or "throwaway bottles"
(ranging in size from 64 ounces to 7 ounces), and finally in
twelve-ounce aluminum cans. In terms of volume of sales
per year at the retail level, approximately 25 to 30 percent of
SQUIRT sales are made in cans.
The SQUIRT name was originally coined in the year 1937
by Citrus Club Products, Inc., of Phoenix, Arizona.
Subsequently, the rights to the SQUIRT name were sold to
The Squirt Company, a partnership which was incorporated
under the laws of the State of California in 1946. The
SQUIRT trademark was first registered by The Squirt
Company on May 23, 1939, for use in "nonalcoholic
grapefruit drink and bases, and syrups and extracts for
making the same."
Since the trademark SQUIRT was first registered by The
Squirt Company in 1939, the Company has continuously
used the SQUIRT trademark in identifying its grapefruit
flavored soft drink, soft drink base, syrups and extracts. And
in order to maintain the recognition and value of its
SQUIRT trademark, The Squirt Company has maintained a
vigilant trademark protection policy. This policy has been
manifested in The Squirt Company's unquestioned
COPR. © 2006 The Bureau of National Affairs, Inc.
207 U.S.P.Q. 12
FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
willingness to contest and oppose the registration of
trademarks which misuse the SQUIRT trademark.
The Seven-Up Company is a manufacturer of flavored
extracts which it sells to others for the purpose of flavoring
finished and packaged soft drinks which in turn are sold to
the ultimate consumers. While The Seven-Up Company
manufactures several different flavors, it is principally
associated with the soft drink, SEVEN-UP, a carbonated
lemon-lime drink.
Seven-Up, U.S.A., Inc., is a wholly owned subsidiary of
The Seven-Up Company, and is essentially the sales arm of
The Seven-Up Company in the United States. The primary
responsibility of Seven-Up, U.S.A., Inc., is the presentation
to Seven-Up developers of the sales execution plans for
Seven-Up Company products.
The soft drink QUIRST is a ready to serve, non-carbonated
Vitamin C enriched lemonade flavored drink which is
slightly yellowish in color. The ingredients of *18 QUIRST
are as follows: Water, sugar, citric acid, potassium sorbate,
sodium benzoate, gum arabic, Vitamin C. glyceryl abietate,
natural flavors, brominated vegetable oil and artificial color.
The history of the lemonade drink QUIRST dates back to
late fall of the year 1977, when the decision was made by
William E. Winter, President and Chief Executive Officer of
The Seven-Up Company for The Seven-Up Company to
introduce a lemonade flavored soft drink to the market.
While no target date was established for the lemonade soft
drink being available on the retail market, Winter
designated April 1, 1978, as a target date by which time the
formulation and total marketing plan for the product would
be completed. On or about May 8, 1978, The Seven-Up
Company's lemonade flavored soft drink QUIRST was for
the first time offered for sale at the retail level in and around
Colorado Springs, Colorado.
[1] The name QUIRST is a coined, fanciful term having
no meaning in the English language. The exact origin of
the word QUIRST is not known for certain. However, the
evidence would suggest that the name originated with the
advertising agency hired by The Seven-Up Company to
work on the lemonade project. Allegedly, a
Page 7
"brainstorming session" was held at the advertising
agency with the purpose of the session being the
generation of a "laundry list" of potential names for The
Seven-Up Company's lemonade flavored soft drink. Out
of this brainstorming session some 144 names were
generated one of which being the name QUIRST.
Suprisingly enough, no one at the advertising agency
would step forward and take credit for creating the name
QUIRST, and as a result the identity of the person who
created it is not known. Nevertheless, it is apparent from
the spelling of the term that the word "quirst" is a
combination of the words "qu ench" and "th irst."
As for the marketing of the soft drink QUIRST, "Thirst
Quenching" was the central theme of The Seven-Up
Company's advertising effort. QUIRST was to be positioned
on the market as a "superior thirst quencher" to all other soft
drinks and beverages. The objective of QUIRST advertising
was to "create the belief that QUIRST is a great tasting
lemonade drink that is superior to soft drinks and other
beverages in its ability to quench thirst." (Plff's Ex. 103)
The advertising objective is clearly manifested in the lyrics
and slogans contained in a few of the QUIRST commercials
and advertisements:
1. Newspaper Advertisement: "Try New Quirst for Thirst."
(Plff's Ex. 108)
2. Promotional Folder: "Quirst Quenches." (Plff's Ex. 127)
3. Song Lyrics: "Whenever I want to quench my thirst * * *
I feel likaQuirst * * * I feel lika Quirst." (Radio
commercial.) (Plff's Ex. 331)
Finally, the thirst-quenching advertising theme for the soft
drink QUIRST was even reflected in the packaging design,
as one of the design objectives of the can was to convey the
image that the product is a superior thirst-quenching
beverage to other beverage alternatives.
In terms of advertising expenditures, the Executive
Committee of The Seven-Up Company authorized between
two million one hundred thousand and two million two
hundred thousand dollars for advertising promotion of the
soft drink QUIRST for the year 1978. It was the goal of the
COPR. © 2006 The Bureau of National Affairs, Inc.
207 U.S.P.Q. 12
FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
Page 8
Company to test market QUIRST in about twenty percent of
the United States in 1978. The proposed Media Plan for
QUIRST called for television as the primary medium, with
local market newspapers serving as a supportive medium
(Plff's Ex. 166). The entire one million one hundred
thousand dollars budgeted for the proposed Media Plan was
to be expended in television and newspaper advertising
running intermittently from the last week of May to the first
week of September of 1978. The entire proposed Media
Plan was to be funded by The Seven-Up Company.
ready-to-drink form, QUIRST is available to consumers in
the United States only in 12-ounce aluminum cans. At the
time of this action QUIRST was being test marketed in the
Phoenix, Arizona, market in the form of a powdered drink
mix. And, at the time of this action The Seven-Up Company
contended that it had made no commitment to introduce and
distribute QUIRST in the United States in bottles.
In addition to television and the newspaper, advertising for
the soft drink QUIRST could be found in radio
commercials, outdoor billboards, truck posters, store shelves
(point of purchase displays), and finally, vending machine
panels.
"Any person who shall, without the consent of the
registrant --
Turning to the distribution of QUIRST, The Seven-Up
Company had a fairly rigid policy that it would not
approach a developer for QUIRST distribution if the
developer was already distributing another brand of
lemonade. There were in fact two types of agreements used
in the wholesale distribution of QUIRST. The first was a
franchise agreement whereby the franchisee would buy the
QUIRST concentrate from The Seven-Up Company,
manufacture the finished product QUIRST from the
QUIRST concentrate, package the product, and finally
distribute it. The second type of agreement was a
distributorship agreement under which Seven-Up
Enterprises, a division of Seven-Up, U.S.A., Inc., would
arrange for the production and packaging of *19 QUIRST,
and then sell it to the distributor for distribution. As of on or
about July 13, 1978, there were between sixty and seventy
bottling plants which were under contract with The
Seven-Up Company for the soft drink QUIRST by either a
franchise agreement or a distributorship agreement.
At the retail level there was evidence of QUIRST being
available for retail sale in both grocery stores and
supermarkets. And as for the location of the product in the
store itself, all of the evidence showed QUIRST being
positioned on the shelf next to, and in the aisle with, other
soft drinks.
Lastly, we turn to the packaging of QUIRST. In its finished,
The basis for plaintiff's action is found in the Lanham Act,
15 USC 1114(1), which provides:
"(a) use in commerce any reproduction, counterfeit,
copy, or colorable imitation of a registered mark in
connection with the sale, offering for sale, distribution,
or advertising of any goods or services on or in
connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive; * * *
shall be liable in a civil action by the registrant for the
remedies hereinafter provided."
Section 45 of the Act, 15 USC 1127, reads in pertinent part
as follows:
"The term 'colorable imitation' includes any mark
which so resembles a registered mark as to be likely to
cause confusion or mistake or to deceive."
In the contest of the present case the essential question to be
answered is whether under all of the circumstances the
trademark QUIRST on the label of a soft drink is similar
enough to the SQUIRT trademark that its use is likely to
cause confusion, mistake or deception of any kind. See
Grotrian, Helfferich, Schulz, etc. v. Steinway & Sons, 365
F.Supp. 707, 712, 180 USPQ 506, 509-510 (S.D. N.Y.
1973); aff'd in relevant part, 523 F.2d 1331, 186 USPQ 436
(2nd Cir. 1975).
[2] In order to determine whether there is a "likelihood of
confusion" in a trademark infringement case such as this,
the Court must consider numerous factors, including inter
alia, the strength or weakness of the SQUIRT mark, the
degree of weakness of the SQUIRT mark, the degree of
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FOR EDUCATIONAL USE ONLY
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(Cite as: 207 U.S.P.Q. 12)
similarity between the two marks, the degree of similarity
between the two products, the competitive proximity of
the products, the alleged infringer's purpose in adopting
its mark, actual confusion, and the degree of care likely to
be exercised by consumers. See Grotrian, etc., supra, at
712, 180 USPQ at 509-510; Union Carbide Corp. v.
Ever-Ready, Inc., 392 F.Supp. 280, 185 USPQ 464 (N.D.
Ill. 1975); rev'd 531 F.2d 366, 81-82, 188 USPQ 623,
636-638 (7th Cir. 1976), cert. denied 429 U.S. 830, 191
USPQ 416 (1976).
While each of the above factors is essential to a
determination of the question of a likelihood of confusion, it
is important that when applying these factors that the Court
keep in mind that the factors are variable and that no single
factor is determinative. As the Court pointed out in KiKi
Undies Corp. v. Promenade Hosiery Mills, Inc., 411 F.2d
1097, 1099, 162 USPQ 67, 68- 69 (2nd Cir. 1969), cert.
dismissed 396 U.S. 1054 (1970):
"These factors are variable and relative and no single
one, because of its presence or absence, is, in itself,
determinative of a case. Rather, the method of approach
requires the trial court to consider and weigh the
evidence relative to each of these points and such other
points as, in the particular circumstances before it, the
court finds applicable; then, from a balancing of the
conclusions reached on all of these factors, the court
decides whether or not the parties are entitled to the
relief or protection sought."
We turn now to consideration of the relevant factors.
In the case of E. I. DuPont de Nemours & Co. v. Yoshida
International, Inc., 393 F.Supp. 502, 512, 185 USPQ 597,
604-605 (E.D.N.Y. 1975) the Court discussed the
distinction between a "strong" and "weak" trademark:
"Strength or weakness is primarily a question of
assessment of a mark's distinctiveness or popularity.
Where the public has been educated to recognize and
accept a particular mark as the *20 hallmark for a
particular source of that product, or the mark itself is
inherently unique or has been the subject of wide
advertisement, it is a strong trademark. Similarly,
Page 9
coined or fanciful marks are generally thought to have a
much more unique or distinctive appeal than words in
common use, and are frequently found to be strong
marks deserving a correspondingly broader degree of
protection." (Citations omitted.)
[3] In view of this Court's finding in its memorandum and
order on plaintiff's motion for a preliminary injunction
that the SQUIRT mark is both a distinctive and strong
trademark, and that it is "fanciful and arbitrary as to soft
drink products," there is little need for additional
discussion of this factor. For purposes of this opinion it
need only be said that because of the strength of the
SQUIRT trademark it is entitled to a greater or broader
degree of protection than is a weak or commonplace
mark. See J. B. Williams Co., Inc. v. Le Conte Cosmetics,
Inc., 523 F.2d 187, 192, 186 USPQ 317, 321 (9th Cir.
1975), cert. denied 424 U.S. 913, 188 USPQ 720 (1976);
Grotrian, etc., supra at 713, 180 USPQ at 510-511.
We next consider the degree of similarity between the
marks.
[4] When dealing with products such as SQUIRT and
QUIRST which are frequently sold in self service grocery
stores and supermarkets, both the visual impression of the
trademark and the sound of the words are important.
Spangler Candy Co. v. Crystal Pure Candy Co., 235
F.Supp. 18, 22, 143 USPQ 94, 97-98 (N.D. Ill. 1964),
aff'd 353 F.2d 641, 147 USPQ 434 (7th Cir. 1965). For
this reason, in determining the degree of similarity
between the two marks, SQUIRT and QUIRST, they must
be compared for similarity in appearance as well as of
sound. David Sherman Corp. v. Heublein, Inc., 340 F.2d
377, 380, 144 USPQ 249, 251-252 (8th Cir. 1965).
[5] It is well settled that in comparing the SQUIRT and
QUIRST marks that "the two marks should not be
examined with a microscope to detect minute differences,
but, on the contrary, should be viewed as a whole."
Syncromatic
Corporation
v.
Eureka
Williams
Corporation, 174 F.2d 649, 650, 81 USPQ 434, 434-435
(7th Cir. 1949); cert. denied 338 U.S. 829, 83 USPQ 543
(1949).
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FOR EDUCATIONAL USE ONLY
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(Cite as: 207 U.S.P.Q. 12)
A simple visual comparison of the words SQUIRT and
QUIRST reveals a definite similarity in appearance. Both
words are short, single words containing the identical
letters, with the word "quirst" being formed from the word
"squirt" by simply moving the "s" from its position at the
beginning of "squirt" and repositioning it between the "r"
and "t". Moreover, a comparison of the two trademarks as to
form and coloring as they are displayed on the 12-ounce
aluminum cans which are used in packaging the soft drinks
discloses further similarity. First, both marks are printed in
standard block letters. Second, only the first letter of both
marks is capitalized, and thus it is larger in size than the
remaining letters. Finally, both marks are printed on the side
of the can with the letters ascending upward from left to
right.
Turning to the dissimilarities in appearance of the two
marks, the most striking distinction is the fact that the first
letter of the two marks is obviously not the same. In terms
of the form and coloring of the two marks as they appear on
a 12-ounce aluminum can, there are further dissimilarities.
The word SQUIRT is printed in bright red letters, with a red
"heart" dotting the "I", against the background of a bright
yellow can. In contrast, the word QUIRST is printed in pale
yellow letters, with a bright yellow lemon dotting the "I",
against a dark green background, with a pale lime green
colored can.
A comparison of the phonetics of the two marks reveals a
definite similarity in sound. The likeness of sound between
SQUIRT and QUIRST is the result of the group of letters
"quir" appearing in both words and the letter "t" being
stationed at the end of each word. Perhaps the best evidence
of the similarity of sound which exists between SQUIRT
and QUIRST is found in the results of the "Chicago" survey
commissioned by defendants. (Plff's Ex. 352)
Page 10
shoppers were randomly stopped and asked a series of
questions by the interviewer. For each respondent a
questionnaire was filled out recording the respondent's
answers to the respective questions. The questionnaires
were then collected and the results tabulated.
Turning to the questions asked in the Chicago survey, the
first two questions were *21 directed to determining the
respondent's brand awareness, both on an unaided and aided
basis, of soft drinks and of cleaning disinfectants. In
Question 3, four different radio commercials were played on
a cassette recorder for the respondent. One of the
commercials advertised SQUIRT, one advertised QUIRST,
one advertised Lysol, and finally one advertised Kraft Blue
Cheese. After all the commercials were played the
respondent was asked to identify the product being
advertised in the commercial. Following Question 3, the
respondents were read the following statement as an
introduction to Question 4: "Among the soft drinks on the
market is a non-carbonated lemonade flavored soft drink
called QUIRST. Another soft drink on the market is a
carbonated grapefruit flavored soft drink called SQUIRT."
This was followed by Question 4 which read: "Do you think
SQUIRT and QUIRST are put out by the same company or
by different companies?"
After answering Question 4, the respondent was asked
Question 4a: "What makes you think that?"
The respondent's answer to Question 4a was to be recorded
verbatim by the interviewer.
In Question 5, the respondent was asked to identify, both on
an unaided and aided basis, any brands of soft drink he or
members of his family had purchased in the last year.
Very briefly, and reserving until a later point in this
memorandum a complete discussion of the mechanics of the
Chicago survey, the procedure of the survey was as follows:
The objective of the Chicago survey and the questionnaire
was "to determine whether or not confusion existed in the
minds of consumers as to the brand names SQUIRT and
QUIRST; and if so, to what degree." (TTR p. 11)
The Chicago survey was conducted in five different Zayre
department stores located in and around the City of
Chicago, Illinois, on July 20, 21 and 22 of 1978. It was
conducted using the store intercept method in which store
Before turning to the specific results of the Chicago survey
two items merit mentioning. First, during the course of the
interviews and the administration of the questionnaire, the
respondents were shown no visual aids, such as a can of
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FOR EDUCATIONAL USE ONLY
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(Cite as: 207 U.S.P.Q. 12)
QUIRST or SQUIRT, or a photograph of either of the
products or even a card with the words SQUIRT and
QUIRST written on it. The respondent's only exposure to
either the SQUIRT mark or the QUIRST mark was by
hearing it. A second important consideration is the fact that
SQUIRT was available for sale in the Chicago area, but
there had been little advertising undertaken promoting the
product. And as for QUIRST, at the time the survey was
taken it had never either been sold or advertised in the
Chicago market, and thus it would be reasonable to assume
that many of the respondents were hearing the name
QUIRST for the first time. By virtue of the small amount of
prior advertising of SQUIRT in Chicago and the complete
absence of any QUIRST advertising at all, it is less likely
that the survey responses were substantially affected by any
conditioning effect which might result from recent exposure
to SQUIRT or QUIRST advertising. (TTR p. 12)
[6] A tabulation of the questionnaires in the Chicago
survey revealed that out of a total of 152 respondents, 22
respondents, or approximately 15% of the sample, gave as
a reason for their response in Question 4 the similarity or
closeness in sound between the names SQUIRT and
QUIRST. Moreover, an additional 46 respondents, or
approximately 30% of the sample, cited as a reason for
their answer in Question 4 the similarity or likeness
between the names SQUIRT and QUIRST. In this Court's
view, the fact that approximately 45% of the entire
sample specifically mentioned either a similarity in sound
between the words SQUIRT and QUIRST, without any
prompting or suggestion whatsoever, is affirmative
evidence of the definite likeness between the two marks
as perceived by persons hearing the two names together.
The importance of the existence of a similarity in sound
between two marks is highlighted by the case of Grotrian,
etc., supra at 1339-40, 186 USPQ at 442-443. In Grotrian,
etc., the Second Circuit found that differences between the
types used in printing the marks served to distinguish the
marks from a visual standpoint. Yet in spite of the obvious
visual distinctions, the Second Circuit sustained the district
court's finding that auditory confusion is inevitable and thus
that similarity of marks exist.
Page 11
competitive proximity of the products.
[7] For purposes of this trademark action, there is a high
degree of similarity between the products. While SQUIRT
is grapefruit flavored and carbonated in contrast to
QUIRST which is lemonade flavored and non-carbonated,
the fact remains that both marks are being applied to
products which fall under the general category of "soft
drinks". Moreover, the likeness between the products does
not stop with the general category of "soft drinks", for
both SQUIRT and QUIRST would fall under the heading
of "non-cola, fruit-flavored soft drinks."
In the case of Sweetarts v. Sunline, Inc., 380 F.2d 923, 927,
154 USPQ *22459, 462-463 (8th Cir. 1967), the Eighth
Circuit in reversing the trial court and finding that the
plaintiff's common law trademark had been infringed,
emphasized the fact that both the infringed mark and the
infringing mark were being applied to the same general
class of product, candy, and overlooked the fact that the
infringed mark was identifying candy of the "toffee and
mixed chocolate variety", whereas the infringing mark was
identifying a candy described by the court as "a small,
brightly colored, powdery tablet with an artificial fruit
flavoring." Id. at 926, 154 USPQ at 461.
[8] Where products are virtually identical, as is the case
here, the degree of similarity in trademarks necessary to
support a finding of infringement is less than in a case of
dissimilar, noncompeting products. See David Sherman
Corporation, supra, at 382, 144 USPQ at 252-253 (8th
Cir. 1965).
[9] Turning to the competitive proximity of the products,
there is no question but that SQUIRT and QUIRST
compete on a direct basis for the same customers. The
closeness of the competition between SQUIRT and
QUIRST is shown by the following identities:
(1) In some instances, SQUIRT and QUIRST are
being packaged by the same bottler and/or being
distributed by the same distributor.
(2) The two products are being offered for sale in
common retail outlets. In fact, in at least one grocery
We next consider the degree of similarity between and the
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207 U.S.P.Q. 12
FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
store or supermarket, SQUIRT and QUIRST were
positioned on the shelf next to one another.
(3) In marketing QUIRST and SQUIRT the parties
are making use of the same vehicles for advertising,
namely, Television, Radio and Newspaper, just to
name a few.
(4) The "thirst-quenching" characteristics of the soft
drink is a theme common to the advertising of both
SQUIRT and QUIRST.
(5) SQUIRT and QUIRST are both packaged in
convenient 12-ounce aluminum cans.
The Court turns now to consider the defendants' intent or
purpose in adopting the QUIRST trademark.
In the case of Fleischmann Distilling Corp. v. Maier
Brewing Co., 314 F.2d 149, 157-58, 136 USPQ 508,
515-516 (9th Cir. 1963), cert. denied 374 U.S. 830, 137
USPQ 913 (1963), the plaintiff, a seller of Scotch Whiskey
under the trademark "Black & White", brought an
infringement action against the defendant who was
marketing beer under the name "Black & White". In holding
that the plaintiff's mark was infringed, the Court discussed
the question of the defendant's intent and its relationship to
the "likelihood of confusion" issue. The Court said:
"It is well settled that plaintiffs were not obligated in
order to make a case against the defendants to prove a
wrong intent. Safeway Stores, Inc. v. Rudner, 9 Cir.
246 F.2d 826, 829, 114 USPQ 206, 208-209. But when
the evidence does show or require the inference that
another's name was adopted deliberately with a view to
obtain some advantage from the good will, good name,
and good trade which another has built up, then the
inference of likelihood of confusion is readily drawn,
for the very act of the adopter has indicated that he
expects confusion and resultant profit." (Citations
omitted.)
[10] There is no question but that the Seven-Up Company
was well aware of the SQUIRT trademark when it was
decided to market their canned lemonade drink under the
name QUIRST. Moreover, there is no doubt but that The
Page 12
Seven-Up Company was cognizant of the plaintiff
corporation's vigorous trademark protection policies prior
to the final decision to proceed with QUIRST.
Nevertheless, this Court cannot say that it was the intent
of defendants to pass their lemonade drink off as being
manufactured by plaintiff or that defendants selected the
name QUIRST in the hope that the similarity in name
would allow defendants to "trade off" or unfairly benefit
by the excellence of plaintiff's product and good will.
First of all, the fact that the lemonade drink QUIRST is the
product of the Seven-Up Company is clearly spelled out on
the face of the QUIRST can directly below the name
QUIRST. Secondly, defendants presented a logical
explanation for the selection of the name QUIRST.
Prior to choosing a name for the canned lemonade product,
The Seven-Up Company decided upon a marketing strategy
in which the product would be positioned on the market as a
"superior thirst quencher." On or around February 8, 1978,
the Company, still undecided about a name for the canned
lemonade drink, commissioned a "Canned Lemonade Name
Study." (Plff's Ex. 144) Very briefly, the study was
conducted in the cities of Philadelphia, Pennsylvania, and
Miami, Florida, and consisted of personal *23 interviews of
some 150 respondents selected via the "shopping center
intercept method." The respondents were asked a series of
questions, which were designed to determine which of five
names -- Chug-A-Jug, Fresh Up, Quirst, Refresh, or Thirst
Burst -- was the most compatible for the Seven-Up
Company's new canned lemonade. In Question 5 of the
survey the respondents were asked about their interpretation
of each of the five names as applied to a "12-ounce canned
lemonade product." For each of the five names the
respondents were asked to answer the question: "What
would the product name _________ mean to your?"
The results to Question #5 indicated that approximately
fifty-two percent of the respondents associated or evaluated
the name QUIRST as meaning "thirst quenching". (Plff's
Ex. 145) This percentage was viewed as significant,
especially when compared with the percentages of the other
four names, which were as follows: For "Fresh Up", 8% of
the respondents, for "Refresh", 18% of the respondents, for
"Thirst Burst", 31% of the respondents, and for
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FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
"Chug-A-Jug", 1% of the respondents, who evaluated the
respective names as meaning "quenches thirst." The survey
demonstrated that the name QUIRST has a much stronger
thirst-quenching connotation associated with it than any of
the four names surveyed. The ability of the name QUIRST
to communicate the idea of "thirst-quenching" was critical
in view of the Company's prior decision to position the
product in the market as a "superior thirst quencher." This
fact proved to be the determining consideration in the
Company's decision to utilize the name QUIRST.
[11] A further indicator of an alleged infringer's intent in
selecting a name is the amount of money he intends to or
has already spent on advertising and promotion of his
product. When an alleged infringer selects a mark very
similar to a well established, well advertised mark which
is held by the plaintiff, and then attaches that mark to a
product very similar or virtually identical to the product to
which plaintiff's well established mark is attached, and
doesn't spend any money or very little money in
advertising his product, it is not unreasonable to infer that
the alleged infringer selected his mark with the specific
intent of profiting from plaintiff's reputation and
advertising. See David Sherman Corp., supra. Such was
not the case under the facts before this Court. Defendant,
The Seven-Up Company, had budgeted between two
million one hundred thousand and two million two
hundred thousand dollars to be used for advertising and
promotion of QUIRST for the year 1978.
We next consider any evidence of actual confusion.
[12] It is well settled that evidence of actual confusion is
not essential to a finding of trademark infringement.
David Sherman Corp., supra, at pp. 380-81, 144 USPQ at
251-252. However, "There can be no more positive proof
of likelihood of confusion than evidence of actual
confusion." Standard Oil Co. v. Standard Oil Co., 252
F.2d 65, 74, 116 USPQ 176, 182 (10th Cir. 1958).
Plaintiff offered the deposition of Mrs. Nancy Moore, a
sales clerk and housewife from Phoenix, Arizona, as being
probative of an incident of actual confusion. Mrs. Moore
testified that she had known her neighbors, Mr. and Mrs.
George Julius, for a period of approximately seven months,
Page 13
and that when she met Mr. Julius he was employed by a
food company. Mrs. Moore stated that approximately one
month prior to the taking of her deposition she had occasion
to talk to Mrs. Julius, who informed her that Mr. Julius had
accepted a position of employment elsewhere and that as a
result they were in the process of selling their house and
moving. Upon asking whether Mr. Julius was being
transferred she was informed by Mrs. Julius that he had in
fact taken a job with the Squirt Company. Mrs. Moore
stated that although she knew there was a product like
SQUIRT years ago, she could not recall it at the time of her
conversation with Mrs. Julius, and thus she inquired as to
what it was. Upon being informed by Mrs. Julius that "It's a
fruit type soft drink", Mrs. Moore responded that she had
seen the ads on television for the product. In reality the
television ads to which Mrs. Moore was making reference
were not advertisements for the product SQUIRT at all.
Rather, the television advertisements to which Mrs. Moore
was referring were commercials for the soft drink QUIRST,
with an audio portion identical to that of Plaintiff's Exhibit
104.
Plaintiff contends that actual confusion between the product
advertised as QUIRST and the name SQUIRT was
responsible for Mrs. Moore's mistake. Moreover, it is the
contention of plaintiff that there can be no doubt but that the
actual confusion was based upon the QUIRST
advertisement, and not a SQUIRT ad, because of the
testimony of Mr. Brooks that there had been no advertising
conducted on behalf of the Squirt Company in the Phoenix
area since early 1977.
[13] *24 This Court has been cited no cases by plaintiff in
which an occurrence similar to the one involving Mrs.
Moore has been held to be direct evidence of actual
confusion. Nevertheless, in this Court's view the
aforementioned incident does demonstrate that some
confusion was present in the mind of Mrs. Moore as to
what she heard being advertised on television. It points up
the possibility of consumers being unable to distinguish
the names SQUIRT and QUIRST, especially when the
names are heard in the context of a television or radio
commercial. Without question, the episode of Mrs. Moore
is further evidence of the definite likeness in sound which
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207 U.S.P.Q. 12
FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
exists between the words SQUIRT and QUIRST.
Plaintiff asserts as a second example of actual confusion the
results of the Maritz Survey commissioned by The
Seven-Up Company. The designer of the Maritz Survey, Dr.
Twedt, defined the purpose of the Maritz Survey as follows:
"To conduct a controlled experiment, the purpose of which
was to obtain factual information about measurable
potential confusion between or among brands of soft
drinks." (TTR p. 1430).
We turn now to the methodology followed in the execution
of the Maritz Survey. At three Low Cost Grocery Stores
located in and around Phoenix, Arizona, a store intercept
study was conducted on July 20, 21 and 22, 1978. During
the three-day period in which the study or survey was
conducted all three of the Low Cost Stores had the soft
drinks, SQUIRT and QUIRST, available for sale at the
reduced price of ninety-nine cents for a six-pack of
12-ounce cans. Upon entering the grocery store all
customers were given a coupon worth fifty cents off the
regular price of one six-pack of 12-ounce cans of any flavor
of non-alcoholic beverage, with the exception of cola flavor.
The primary purpose of the fifty-cent coupon was to
stimulate the purchase of non-cola soft drinks and thus
increase the efficiency of the three-day survey by having a
large sample.
After a customer had completed his shopping, gone through
the check-out line, had his groceries bagged and was
preparing to leave the store, he was intercepted by an
interviewer and asked the following questions which were
contained in a questionnaire: Question #1. "Did you get a
coupon like this on your way into the grocery store?" (At
the time of asking the question the interviewer displayed the
fifty-cent off coupon described above.)
If the answer to Question #1 was "Yes," the interview
continued and the respondent was then asked: Question #2:
"Did you use your coupon?"
If the answer to Question #2 was "Yes," the interview
continued and the following question was directed to the
respondent: Question #3: "What brands of six-pack
12-ounce cans of non-alcoholic beverage other than cola
Page 14
flavor did you buy?"
The answers to Question #3 were recorded verbatim by the
interviewer on the questionnaire. Following the recording of
the responses to Question #3 the respondent was issued the
following request: Question #4: "May I see the six-pack(s)
of (each brand in the order mentioned in Question #3) you
bought? I know it is an inconvenience to unpack your
groceries so I will give you a $3.00 gift certificate good on
any purchase of $3.00 or more at this store through July
30th if you will show me the six-pack(s) you bought."
The interviewers were instructed to record verbatim the
exact brands of 12- ounce canned, non-alcoholic beverages
which were shown to them by the respondent. Finally, after
recording the brands displayed, the interviewer directed the
following question to the respondent: Question #5. "About
how many bottles or cans of soft drinks would you say you
have purchased in the past 30 days?"
The answer to Question #5 was then recorded on the
questionnaire. Following Question #5 the respondents were
asked a series of demographic questions, which are
unimportant for purposes of this action.
It should be pointed out that to insure that the interviewer
had no prior knowledge as to the soft drink purchases of the
respondent, the interviewers were instructed to interview
only those customers whose purchases of soft drinks were
not outwardly visible to the interviewer. Thus, a customer
whose soft drink purchases were sitting in plain view within
the cart would not be interviewed.
After the last demographic question was answered and the
results recorded on the questionnaire, the respondent was
thanked and the questionnaire containing his responses was
retained by the interviewer so that the results might be
tabulated. At this point a new interview was started with a
new copy of the questionnaire.
Following the completion of the entire survey a tabulation
was made of the number of respondents who correctly
identified the brand purchased and of respondents who *25
did not correctly identify the brands they had just previously
purchased.
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207 U.S.P.Q. 12
FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
A compilation of the Maritz Survey results disclosed that a
total of 1,016 persons were in fact interviewed. Of this total,
some 884 persons answered "Yes" to Question #2 and thus
used their fifty-cent coupon. Of the 884 persons who used
their coupon, 839 responded to Question #3 by identifying
the brands they purchased and then responded to Question
#4 by displaying their beverage purchases to the
interviewer. Of the total of 839, there were 70 persons who
stated in answer to Question 3 the soft drink SQUIRT. Of
the 70 persons who said they had SQUIRT, 65 in fact were
able to display SQUIRT in response to Question #4. Three
persons who said they had purchased SQUIRT, in fact had
purchased QUIRST, while two persons of the total of 70
who said they purchased SQUIRT, in fact purchased the soft
drink SPRITE. Thus, approximately 4.3% of the
respondents, three out of the 70 who said they had
purchased SQUIRT, when asked to display their purchases
in fact had purchased QUIRST.
There is no disagreement between the parties as to the
questionnaire used, the procedure followed in executing the
survey, or the procedure followed in compiling the results of
the survey. However, the parties do not disagree as to the
reliability or validity of the Maritz Survey results, and there
is sharp disagreement between the parties as to the
interpretation which should be accorded the results of the
survey.
It is the contention of the defendants that the Maritz Survey
does not demonstrate actual confusion. Rather, defendants
assert that the survey evidences the possibility of confusion
between SQUIRT and QUIRST. Moreover, defendants
contend that the 4.3% rate of possible confusion is
statistically insignificant and de minimus.
Plaintiff contends that the three instances in the Maritz
Survey where the respondent said he purchased SQUIRT in
answer to Question #3 but then displayed QUIRST in
response to Question #4, demonstrate the existence of actual
confusion on the part of the respondent. With respect to
whether 4.3% is statistically significant, in Roto-Rooter
Corporation v. O'Neal, 513 F.2d 44, 46, 186 USPQ 73,
74-75 (5th Cir. 1975), the district court had considered the
testimony of four persons who had mistakenly employed
defendants although intending to use the service of plaintiffs
Page 15
as "not statistically significant," but in reversing the district
court the Fifth Circuit stated: "[A]s this court said in World
Carpets, [Inc. v. Dick Littrell's New World Carpets, 438
F.2d 482, 489, 168 USPQ 609, 614-615 (5th Cir. 1971)],
'reason tells us that * * * very little proof of actual confusion
would be necessary to prove the likelihood of confusion."'
As a starting point in this Court's evaluation of the Maritz
Survey, we would point out that we know of no cases
containing an actual market survey of the Maritz variety
wherein an actual purchaser is asked to list the brands he has
just purchased, and then asked to display the brands he has
named, in order to determine the accuracy of his listed
purchases. The cases which contain survey evidence that
have been cited by the parties in their briefs are not of the
Maritz type wherein consumer action or behavior is
evaluated. Rather, the cases cited to this Court entail
"opinion" type surveys, where typically a specific number of
interviews are conducted either in a "purchasing"
environment, such as a store or shopping center, or in a
"non-purchasing" environment, such as the home or
laboratory, and the respondent will be asked to express his
or her opinion with respect to specific marks and whether
they originate from the same source, or whether there is any
relationship at all between two marks, etc. See E. I. DuPont
de Nemours & Co. v. Yoshida International, Inc., supra;
Union Carbide Corp. v. Ever-Ready, Inc., supra; Standard
Oil Co. v. Standard Oil Co., supra at 75, 116 USPQ at 183;
James Burrough Limited v. Sign of Beefeater, Inc., 540 F.2d
266, 277-78, 192 USPQ 555, 563-565 (7th Cir. 1976).
[14] This Court cannot say that the results of the Maritz
Survey demonstrate the existence of actual confusion
between SQUIRT and QUIRST. It is unclear from the
face of the survey whether the three instances wherein
SQUIRT and QUIRST were interchanged was the result
of carelessness or inadvertence on the one hand, or
whether SQUIRT and QUIRST were interchanged as a
result of the confusing similarity between the names on
the other hand, or even some combination of the two
extremes. In the absence of any opportunity for the
surveyed party to be cross-examined it is not possible to
determine the reasons for the three instances of QUIRST
being interchanged with SQUIRT. The unavailability of
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FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
cross-examination of the three respondents who
interchanged QUIRST with SQUIRT is the crucial fact
which distinguishes Roto-Rooter Corp., supra, from the
present case.
In Roto-Rooter Corp. supra, the opportunity for
cross-examination was present as to the four persons who
had mistakenly *26 employed defendants although
intending to use the services of plaintiffs. The
cross-examination of the four persons cleared up any doubts
as to the reason for their mistakenly employing defendant:
"Cross-examination, rather than demonstrating carelessness
or inadvertence, showed that the four persons had made
their mistakes because of reliance upon the similarity of
defendants' name to that of plaintiffs'." Id. at 46, 186 USPQ
at 74-75. For these reasons this Court does not believe that
the Maritz Survey results demonstrate the existence of
actual confusion.
[15] While unwilling to accept the Maritz Survey as
evidence of actual confusion, this Court does believe that
the results of the Maritz survey are strong evidence of a
likelihood of confusion between SQUIRT and QUIRST.
First of all, the fact that the survey was conducted in a
live market environment and measured actual consumer
purchasing behavior as opposed to being conducted in the
home and measuring consumer opinion, lends greater
reliability to the survey results. As Judge Wyzanski
pointed out in American Luggage Works v. United States
Trunk Co., Inc., 158 F.Supp. 50, 116 USPQ 188
(Mass.1957); aff'd 259 F.2d 69, 118 USPQ 424 (1st Cir.
1958), at page 53, 116 USPQ at page 190-191:
"If the interviewee is not in a buying mood but is just in
a friendly mood answering a pollster, his degree of
attention is quite different from what it would be had he
his wallet in his hand. Many men do not take the same
trouble to avoid confusion when they are responding to
sociological investigators as when they spend their
cash."
[16] Secondly, evidence which would support the theory
that the interchanges which occurred between SQUIRT
and QUIRST were the result of the similarity which exists
between the marks and not the result of carelessness or
Page 16
inadvertence on the part of the respondent, is found in
Exhibit E(4) wherein the survey data has been compiled.
Looking at the chart found on page 6, with but two
exceptions all of the incidents of "possible" confusion
involved either brands with virtually identical names,
such as Dr. Pepper being confused with Sugar Free Dr.
Pepper and vice versa, Sugar Free Seven-Up being
confused with Seven-Up, Sugar Free Sprite being
confused with Sprite, and Sugar Free Shasta being
confused with Shasta; or the "possible confusion"
involving five brands with at least some similarity in
name, those being Squirt, Quirst, Sprite, Shasta and
Seven-Up. In other words, the incorrect identifications
were very highly concentrated in brands with either
virtually identical names or names wherein some likeness
existed. This result would suggest that with respect to
non-cola, non-alcoholic beverages, there is a definite
interconnection between similarity of name and "possible
confusion."
[17] Lastly, this Court cannot say that the 4.3% (three out
of seventy) level of error between SQUIRT and QUIRST
is de minimus or statistically insignificant, when it is
considered in the context of the entire soft drink industry.
While the percentage of "likely confusion" required will
vary from case to case, in Grotrian, etc., supra, at 716, the
district court determined a survey to be strong evidence of
the likelihood of confusion in which 7.7% of the
respondents perceived a business connection between the
alleged infringing company and the plaintiff company,
and 8.5% of the respondents confused the two names.
In addition to the Maritz Survey, plaintiff offers two other
surveys in support of its contention that a likelihood of
confusion exists between the SQUIRT and QUIRST marks.
More specifically, plaintiff commissioned two related
surveys which this Court will refer to as the Chicago Survey
and the Phoenix Survey.
Turning to the procedures followed in executing the two
surveys, this Court has already discussed in a fair amount of
detail the Chicago Survey. For this reason we direct our
attention to the Phoenix Survey.
The Phoenix Survey was conducted in eight different
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FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
Safeway and Fed-Mart supermarkets in and around the City
of Phoenix, Arizona, on July 20, 21 and 22, 1978. The
Phoenix area was selected as the site of the survey because
it represented a market wherein both SQUIRT and QUIRST
were available for sale.
The survey was administered using the store intercept
method in which "qualified respondents", that is, any
woman 25 years of age and older, who had purchased soft
drinks that day, were randomly stopped and asked a series
of questions by the interviewer. For each respondent
interviewed a questionnaire was filled out recording the
respondent's answers to the respective questions. At the
conclusion of the survey the questionnaires were collected
and the results tabulated.
Turning to the questions which made up the Phoenix Survey
Questionnaire (Plff's Ex. 353), the first question was
directed toward determining the respondent's brand
awareness of soft drinks, both on an unaided *27 and aided
basis. Both SQUIRT and QUIRST were included in the
"aided" list of brands. Upon completion of Question 1,
Question 2 was directed to the respondent, which read: "I
noticed you purchased soft drinks today. Without looking at
what you purchased * * * what brands of soft drink did you
purchase?"
Following Question #2, the identical question to Question
#4 of the Chicago Survey was directed to the respondent:
"Among the soft drinks on the market is a non-carbonated,
lemonade flavored soft drink called QUIRST. Another soft
drink on the market is a carbonated, grapefruit flavored soft
drink called SQUIRT." This was followed by 2a, which
read: "Do you think SQUIRT and QUIRST are put out by
the same company or by different companies?"
After the respondent answered Question #2a he was asked
Question #2b: "What makes you think that? The interviewer
was to record the respondent's answer to Question #2b
verbatim.
Finally, in Question #3 the respondent was asked to identify
any brands of soft drink that he or members of his family
had purchased in the last year, both on an unaided and aided
basis.
Page 17
It was the objective of the Phoenix Survey to determine
whether or not confusion existed in the minds of purchasers
of soft drinks as to the names SQUIRT and QUIRST, and if
so, to what degree.
In the case of American Luggage Works, supra, at 54, 116
USPQ at 191, the court offered the following observations
with respect to the evaluation of survey evidence:
"In every case where the results of a poll or similar
survey are offered, there arise as preliminary problems
the propriety of the universe, the choice of the sample,
the qualifications of the experts and investigators, the
manner of interviewing, the questions asked by the
investigators, and the scope of freedom of the
interviewee to frame an answer in his own terms."
Before examining the Phoenix and Chicago Surveys, it must
be pointed out that the parties made the following
stipulation:
"It is stipulated that the interviewees who conducted the
field survey work as the same relates to the surveys to
be relied upon by the parties followed instructions and
were competent. This stipulation is based upon mutual
representations by counsel that the interviewees were
not advised for whom the survey was being taken."
[18] Because of the similarities between the Chicago and
Phoenix Surveys, this Court will examine the two surveys
together. In the Chicago Survey, "Qualified Respondents"
were any women 25 years of age or older who was
shopping in the store on the day of the survey. In the
Phoenix Survey, "Qualified Respondents" were limited to
any women 25 years of age or older who had also
purchased any kind of soft drink on the day of the survey.
In our view, both surveys were directed at suitable
universes, with the Phoenix Survey universe perhaps
being more appropriate since the person interviewed was
definitely a purchaser of soft drinks. As a pactical matter,
since almost anyone would be likely to have purchased
soft drinks at one time or another, both surveys might
well have been directed at the general population. See
Union Carbide Corp., supra, at 388, 188 USPQ at
643-644.
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FOR EDUCATIONAL USE ONLY
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(Cite as: 207 U.S.P.Q. 12)
As for the process of selecting the individual respondents, in
both surveys respondents were selected in a random fashion.
The first woman 25 years of age or older to approach the
interviewer (In Phoenix the woman had to have purchased
soft drinks on the day of the survey in addition to being a
woman 25 years of age or older) was confronted and
interviewed face to face. As soon as that interview was
completed, the very next respondent who approached was
interviewed. Thus, the first qualified respondent to approach
an interviewer after the completion of the preceding
interview was the criteria for selecting respondents.
[19] Both the Chicago and Phoenix Surveys were
conducted under the direction of the firm of Britt and
Frerichs, Inc., a well known marketing research firm in
Chicago, Illinois. The questionnaire utilized in the
Phoenix Survey, as well as the questionnaire utilized in
the Chicago Survey, were developed by Dr. Steuart Britt,
a founder of the firm, and John Bunge, Manager of
Administration and Operations for the firm. Both men are
indeed qualified as experts in the area of Marketing
Research. There would appear to be no problem with the
manner in which the interviews were conducted in either
survey, as the interviewers were instructed to record the
responses verbatim. Moreover, the questions contained in
both the Chicago questionnaire and the Phoenix
questionnaire were neither slanted nor leading. There
were no restrictions placed upon the respondent insofar as
stating his reasons for a particular response when called
upon to defend his answer. Finally, there was at least a
twenty percent verification of *28 the results in both the
Chicago and the Phoenix Surveys. This insures that the
interview was accurately recorded by the interviewer.
Turning to the results of the Chicago and Phoenix Surveys,
we would begin by pointing out that a total of 152
interviews were conducted in Chicago and that a total of
476 interviews were conducted in Phoenix. In Chicago, 51
persons said that SQUIRT and QUIRST were put out by the
same company, or 34% of the sample; 84 persons said that
SQUIRT and QUIRST were put out by different companies,
or 55% of the sample; and 17 persons didn't know whether
SQUIRT and QUIRST are put out by the same or different
companies, or 11% of the sample. In Phoenix, 110 persons
Page 18
said that SQUIRT and QUIRST are put out by the same
company, or 23% of the sample; 161 persons said that
SQUIRT and QUIRST are put out by different companies,
or 34% of the sample; and 205 persons didn't know if
SQUIRT and QUIRST are put out by the same or by
different companies, or 43f the sample.
In other trademark infringement cases surveys similar to
plaintiff's Chicago and Phoenix surveys have been held to
be of probative value in the Court's finding that a likelihood
of confusion existed. See LaMaur, Inc. v. Revlon, Inc., 245
F.Supp. 839, 146 USPQ 654 (D. Minn. 1965); Seven-Up
Co. v. Green Mill Beverage Co., 191 F.Supp. 32, 128 USPQ
284 (N.D. Ill. 1961); James Burrough LTD v. Sign of
Beefeater, supra; Standard Oil Co. v. Standard Oil Co.,
supra.
Before discussing the results of the Phoenix and Chicago
surveys this Court would offer the following observation
with respect to the mechanics of the surveys.
First off, it is generally thought that in evaluating surveys
that any technical deficiencies ought to go to the weight
accorded them and not to their admissibility in evidence.
See La Maur, Inc. v. Revlon, supra, at 842, 146 USPQ at
655-656. This Court's criticism of the Chicago and Phoenix
Surveys is grounded upon the following statement by the
Court in Spangler Candy Co. v. Crystal Pure Candy Co.,
supra, at 22, 143 USPQ at 97-98:
"When products are sold by name over a counter the
sound of the name is important. (Citations omitted.)
When products are sold in self service markets, then the
visual impression of the trademark as well as the sound
of the words is important."
[20] It is well established by the evidence that self service
grocery stores and supermarkets represent the largest
retailer of the soft drink SQUIRT in terms of total volume
of sales per year. As pointed out by the Court in Spangler,
supra, when dealing with products such as SQUIRT
which are frequently sold in self service grocery stores,
the visual impression of the mark is very important
because of the fact that the purchaser identifies and
selects the product through his sense of sight. In both the
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FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
Chicago and Phoenix surveys the respondents were
shown no visual aids whatsoever, thus precluding any sort
of visual comparison of the SQUIRT and QUIRST marks.
In this Court's view some visual representation of the two
marks, such as a can of SQUIRT and a can of QUIRST,
or a photograph of the two cans, should have been
displayed to the respondent so that a visual comparison of
the two marks could be made. As it was, in both surveys
the respondent's only exposure to the two marks was by
hearing them.
Turning to the results of the Chicago and Phoenix surveys,
we would begin by noting that the percentage of
respondents who said SQUIRT and QUIRST were put out
by the same company (Chicago 34%, Phoenix 23%), is
comparable and in some cases higher than those held
sufficient in other cases to support in part an inference that
confusion is likely. James Burrough LTD v. Sign of
Beefeater, Inc., supra (15%); Jockey International, Inc. v.
Burkard, 185 USPQ 201 (S.D. Cal. 1975), (11.4%);
Seven-Up Company v. Green Mill Beverage Co., supra
(25%); Humble Oil & Refining Co. v. American Oil Co.,
259 F.Supp. 559, 151 USPQ 266 (E.D. Mo. 1966) (18%),
aff'd 405 F.2d 803, 160 USPQ 289 (8th Cir. 1969), cert.
denied 395 U.S. 905, 161 USPQ 832.
[21] In this court's view, the not insubstantial percentages
of respondents who mistakenly connected the soft drinks
SQUIRT and QUIRST as being "put out by the same
company" is some evidence of a likelihood of confusion,
deception, or mistake regarding the source or origin of the
soft drink QUIRST.
This Court would offer this final observation with respect to
the Phoenix survey alone, having already made in essence
the same observation in regard to the Chicago survey. The
results of the Phoenix survey disclose that out of a total of
110 respondents who answered Question 2a with the
response "same company", 61 persons gave as a reason for
that answer a response which would fall in one of the four
following categories which were established by the author
of the survey (TTR p. 64):
*29 Response Categories:
01 Just the names/Names similar/Names alike.
Page 19
02 Sound the same/ "Qu" sound in both/ Sound alike/ Sound
similar.
03 They are almost alike/ Similar/Same idea.
04 Letters in names/Switched letters.
Of the 161 respondents of the Phoenix Survey who
responded to Question #2a with the response "different
companies", 53 persons gave as a reason for such answer a
response which would fall into at least one of the following
categories which were established by the author of the
survey (TTR pp. 66-67):
Response Categories:
01 Names same/Similar/Confusing.
02 Names sound similar/Too similar.
03 Too much alike to be put out by the same company/Too
confusing.
04 Same company would
similar/Identical/Confusing.
not
have
names
so
05 Spelled almost same/Changed letters around.
[22] Disregarding the respondents' answer to Question
#2a for the moment, this Court believes it significant that
without any suggestion whatsoever approximately 25%
(114/476) of the entire sample cited as a basis for their
response to Question #2a a reason very closely related to
either the similarity between the names or the similarity
between the sounds of the names or the similarity in the
spelling of the names SQUIRT and QUIRST. This is but
further evidence of the definite likeness or similarity
between the marks as perceived by persons hearing the
two names together.
Finally, we turn to consider the degree of care likely to be
exercised by consumers in the purchase of products such as
SQUIRT and QUIRST.
In the case of Grotrian, Helfferich, Schulz, etc. v. Steinway
& Sons, supra, at 1342, 186 USPQ at 445, the Court stated:
"We recognize that in a trademark infringement action
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FOR EDUCATIONAL USE ONLY
1979 WL 25027 (E.D.Mo.), 207 U.S.P.Q. 12
(Cite as: 207 U.S.P.Q. 12)
the kind of product, its cost and the conditions of
purchase are important factors in considering whether
the degree of care exercised by the purchaser can
eliminate the likelihood of confusion which would
otherwise exist."
[23] In the present case we are dealing with two brands of
soft drink, the price of which are relatively low. As a
result of the low cost and relatively short product life after
purchase, soft drinks would tend to be purchased on a
fairly frequent basis and thus be a relatively routine type
of purchase. Grocery stores and supermarkets are the
primary retail outlet for soft drinks, the purchases being
made without the assistance of any type of sales person
and in an environment not particularly conducive to a
slow, thoughtful and deliberate purchasing process. For
these reasons this Court believes that it is reasonable to
infer that a relatively low degree of care would be
involved in the purchase of SQUIRT and QUIRST.
Moreover, we do not believe that this degree of care
which might be exercised by the purchaser can eliminate
the likelihood of confusion which might otherwise exist
between SQUIRT and QUIRST. In fact, because of the
relatively "low" degree of care likely to be exercised in
the purchase of SQUIRT and QUIRST it is a fair
inference that the likelihood of confusion between
SQUIRT and QUIRST would be greater than with items
wherein a relatively "high" degree of care might be
exercised in connection with their purchase. See
American Chicle Co. v. Topps Chewing Gum, Inc., 208
F.2d 560, 563, 99 USPQ 362, (2nd Cir. 1953); RJR
Foods, Inc. v. White Rock Corp., Case No. 77 Civ. 2329,
201 USPQ 578 (S.D. N.Y. 1978), attached to plaintiff's
post trial brief.
Page 20
SQUIRT trademarks because the name QUIRST is likely
to cause confusion, mistake or deception.
This memorandum opinion will be adopted by the Court as
its findings of fact and conclusions of law with respect to
the question of liability, and the attorneys for the plaintiff
will prepare the proper order to be entered by the Court, first
submitting same to the attorneys for the defendants for
approval as to form, and then to the Court for entry.
E.D.Mo.
207 U.S.P.Q. 12
END OF DOCUMENT
[24] In summary, the presence of the strong and
distinctive SQUIRT trademark, the extensive similarity
between the SQUIRT and QUIRST mark, the close
competitive proximity and similarity between the
products, the low to moderate degree of care likely to be
exercised by purchasers of soft drinks, and the Maritz,
Chicago and Phoenix Surveys, are all signs of a likelihood
of confusion. These considerations lead us to the
conclusion that the defendants are infringing the plaintiff's
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