"Surfviving" Summary Judgment In Trademark Infringement Actions
Ruling on a recent trademark infringement lawsuit in which Surfvivor Media, Inc. (a purveyor of beach-themed merchandise) sued Survivor Productions (responsible for the popular "Survivor" television program and related merchandise) for reverse confusion, the Court of Appeals for the Ninth Circuit upheld summary judgment in favor of Survivor on the basis that confusion between the products of the parties was not likely. Surfvivor Media, Inc. et al. v. Survivor Productions et al., 406 F.3d 625 (9th Cir. 2005).
The court balanced the traditional factors enunciated in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-349 (9th Cir. 1979) to determine whether confusion was or was not likely. While the court found that a greater number of Sleekcraft factors favored Surfvivor somewhat meekly, it upheld summary judgment for Survivor based on the relative strength of the factors that favored Survivor, apparently including (in the court's analysis) a significant lack of demonstrable actual confusion.
One lesson to be drawn form Surfvivor Media is that trademark litigants should not focus solely upon how many factors from the traditional trademark infringement balancing test weigh in their favor, but should also pay attention to how heavily the courts will weigh each factor according to the particular circumstances, and structure their arguments accordingly.