David Lilenfeld Blog The intellectual property blog of David Lilenfeld

1Feb/160

“Consumer degree of care” — another likelihood of confusion factor

By David Lilenfeld on February 1, 2016

Here we move on to the seventh factor in the likelihood of confusion (based on the 9th Circuit's view).  How much care do consumers pay when purchasing the respective products of the parties?

7.  Consumer degree of care

“In analyzing the degree of care that a consumer might exercise in purchasing the parties' goods, the question is whether a ‘reasonably prudent consumer’ would take the time to distinguish between the two product lines. Surfvivor Media, Inc., 406 F.3d at 634. “[T]he standard used by the courts is the typical buyer exercising ordinary caution.

[W]hen the goods are expensive, the buyer can be expected to exercise greater care in his purchases . . . .”  Network Automation, Inc., 638 F.3d at 1152.  Again, the parties present conflicting evidence as to the degree of care consumers of their products are likely to exercise. Top Shelf’s expert opines that kombucha is a “niche product” and that the price point of Clearly Kombucha is high enough, relative to other bottled beverages, to foster a relatively greater degree of care among consumers. (See Silverman Rep. ¶¶ 55-56.) Top Shelf’s founder testifies that its clients are particularly health-conscious, and therefore are more discerning when choosing bottled beverages. (Cargle Decl. ¶ 20.) On the other hand, Clearly Canadian points to evidence showing that Top Shelf’s beverages have been sold at a variety of price points, ranging on the low end from $1.50 to $3.00. (See Supp. Resp. at 12-13).

“With respect to small, inexpensive goods . . . the consumer is likely to exercise very little care.” Surfvivor Media, Inc, 406 F.3d at 634; see also CytoSport, Inc. v. Vital Pharm., Inc., 617 F. Supp. 2d 1051, 1076 (E.D. Cal. 2009) (finding a low degree of care with respect to bottled drinks costing between $3.00 and $5.00). A jury reviewing the parties’ evidence could reasonably find that consumers purchasing Clearly Canadian and Clearly Kombucha beverages exercise a low degree of care. Therefore, for the purposes of summary judgment, this factor weighs in Clearly Food’s favor.

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