International v. Winship Green
Case Date: 12/30/1996
Court: United States Court of Appeals
Docket No: 96-1206
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UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT _________________________ No. 96-1206 THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, ET AL., Plaintiffs, Appellants, v. WINSHIP GREEN NURSING CENTER, ET AL., Defendants, Appellees. _________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Gene Carter, U.S. District Judge] ___________________ _________________________ Before Selya, Circuit Judge, _____________ Torres* and Saris,** District Judges. _______________ _________________________ Mark Schneider, with whom John M. West and Bredhoff & _______________ ______________ ___________ Kaiser, P.L.L.C. were on brief, for appellants. ________________ Richard L. O'Meara, with whom Charles P. Piacentini, Jr. and __________________ __________________________ Murray, Plumb & Murray were on brief, for appellees. ______________________ _________________________ December 30, 1996 _________________________ ______________ *Of the District of Rhode Island, sitting by designation. **Of the District of Massachusetts, sitting by designation. SELYA, Circuit Judge. In this eccentric case, the SELYA, Circuit Judge. _____________ International Association of Machinists and Aerospace Workers (IAM or Union) charged an employer, Winship Green Nursing Center (Winship), with violating the Lanham Act, 15 U.S.C. 1051-1127 (1994), through its unauthorized use of a service mark on propaganda disseminated during a union organizing campaign.1 The district court granted Winship's motion for brevis disposition, ______ reasoning that the Union's claim failed to satisfy the Lanham Act's jurisdictional requirements because (1) the parties were not competing for the sale of commercial services, and (2) Winship's admittedly unauthorized use of the mark was in connection with services offered by the markholder rather than services offered by the infringer. See International Ass'n of ___ _______________________ Machinists v. Winship Green Nursing Ctr., 914 F. Supp. 651, 655- __________ __________________________ 56 (D. Me. 1996). The Union appeals. We affirm, albeit on a different ground. I. BACKGROUND I. BACKGROUND We present the basic facts in the light most flattering to the party vanquished by summary judgment. All the relevant events occurred in 1994, and all dates refer to that year. A A In May the Union mounted a campaign to organize the ____________________ 1An IAM official, Dale Hartford, is also a plaintiff, and two affiliates of Winship (Hillhaven Corp. and First Healthcare Corp.) are codefendants. Since the presence of these additional parties does not affect the issues on appeal, we treat the litigation as if it involved only the Union (as plaintiff- appellant) and Winship (as defendant-appellee). 2 nonprofessional employees at Winship's facility in Bath, Maine. Not surprisingly, management resisted this initiative and exhorted the affected employees to vote against IAM's election as a collective bargaining representative. As part of its retort Winship hand-delivered two pieces of campaign literature to employees in the putative bargaining unit. These handouts form the basis for IAM's lawsuit. 1. The First Flier. In July Winship distributed a 1. The First Flier. ________________ three-page flier, the first page of which asks rhetorically: WHAT WOULD YOU DO IF YOU GOT THE ATTACHED LETTERS? WOULD YOU BE ABLE TO FIND ANOTHER JOB? HOW WOULD YOU PAY YOUR BILLS? WOULD YOU WISH THAT THE MACHINISTS UNION HAD NEVER GOTTEN IN AT WINSHIP GREEN? The flier then advises recipients that "IT'S NOT TOO LATE" and implores them to "GIVE [certain named managers] A CHANCE" by "VOT[ING] NO ON AUGUST 4." The letters, addressed individually to particular employees and dated one year after the scheduled _____ election, comprise the second and third pages of the flier. One letter purports to be written on the Union's letterhead, complete with a reproduction of the IAM service mark (consisting of a set of machinist's tools surrounded by a gear and the IAM name)2 and the facsimile signature of an IAM plenipotentiary, Dale Hartford. ____________________ 2Service marks and trademarks function to identify the source of services and goods, respectively. The difference between the two types of marks is not relevant here, and thus we will apply case law involving either form. See Star Fin. Servs., ___ _________________ Inc. v. AASTAR Mortgage Corp., 89 F.3d 5, 8 n.1 (1st Cir. 1996); ____ _____________________ Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d 812, 815 _________________________________ _______ n.1 (1st Cir. 1987). 3 This missive suggests that the Union had notified Winship of its obligation, pursuant to an invented collective bargaining agreement, to terminate the recipient's employment because of her failure to pay certain assessments (e.g., union dues and an initiation fee). The other epistle, signed by Winship's director of operations, is also postdated. It acknowledges Winship's receipt of the notice and professes to inform the addressee that the company must honor the Union's request. 2. The Second Flier. The remaining piece of campaign 2. The Second Flier. ________________ literature, disseminated by Winship a few days before the election, urges the reader to vote against unionization and warns that union membership will bring significant financial burdens. This flier contains a simulated invoice inscribed on what purports to be IAM's letterhead (and which bears the IAM service mark). Under a heading that reads "PAYABLE TO THE MACHINISTS UNION BY [employee's name]", the invoice lists amounts designated as union dues, an initiation fee, and fines.3 Commentary, undiluted by subtlety, accompanies this listing: "NO MATTER WHAT THE UNION HAS TOLD YOU JUST ASK THE EMPLOYEES AT LOURDES HOSPITAL" AND "JUST ASK THE 13 EMPLOYEES AT GENERAL ELECTRIC IN SOUTH PORTLAND WHO WERE FINED FOR CROSSING THE PICKET LINE THERE." Large, bold letters at the bottom of the invoice proclaim: "WITHOUT THE MACHINISTS UNION, DO NOT PAY THIS BILL." ____________________ 3The stated amounts are not only apocryphal but also extravagant. During the organizing drive, IAM repeatedly declared that there would be no initiation fee and that no worker's monthly dues would exceed $20. 4 Notwithstanding Winship's tactics or, perhaps, due to them the employees chose IAM as their collective bargaining representative in the August 4 election. B B The Union proved to be a sore winner. It soon filed suit against Winship alleging inter alia trademark infringement _____ ____ and unfair competition under the Lanham Act.4 The Union premised its federal claims on the theory that Winship's unauthorized use of the registered service mark occurred "in connection with . . . services," namely, IAM's representational services, and thereby transgressed sections 32(1) and 43(a) of the Lanham Act. See 15 ___ U.S.C. 1114(1)(a) & 1125(a) (quoted infra note 5). The _____ district court rejected this theory for the reasons previously mentioned. See IAM, 914 F. Supp. at 655-56. This appeal ___ ___ followed. II. THE SUMMARY JUDGMENT STANDARD II. THE SUMMARY JUDGMENT STANDARD Though the case is unconventional, the generic legal standard that we must apply is prosaic. Summary judgment is appropriate in trademark infringement cases, as elsewhere, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show ____________________ 4IAM's complaint also embodied a salmagundi of pendent state-law claims. The district court dismissed these claims without prejudice coincident with the entry of summary judgment on the federal claims. See IAM, 914 F. Supp. at 656. We ___ ___ understand that the Union is pursuing these claims in a separate state court action. Finally, the complaint sought injunctive relief under the Norris-LaGuardia Act, 29 U.S.C. 101-115 (1994), but the Union now concedes the infirmity of this request. 5 that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Boston Athletic Ass'n v. Sullivan, 867 F.2d 22, 24 (1st Cir. ______________________ ________ 1989) (quoting Fed. R. Civ. P. 56(c)). Generally speaking, a fact is "material" if it potentially affects the outcome of the suit, see Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. ___ _______ _______________ 1990), and a dispute over it is "genuine" if the parties' positions on the issue are supported by conflicting evidence, see ___ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). While ________ ___________________ an inquiring court is constrained to examine the record in the light most favorable to the summary judgment opponent and to resolve all reasonable inferences in that party's favor, see ___ Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir. 1996), defeating a _________ ____ properly documented motion for summary judgment requires more than the jingoistic brandishing of a cardboard sword. This is especially true in respect to claims or issues on which the nonmovant bears the burden of proof; in such circumstances she "must reliably demonstrate that specific facts sufficient to create an authentic dispute exist." Garside, 895 F.2d at 48; see _______ ___ also Anderson, 477 U.S. at 256. ____ ________ We review de novo the district court's grant of summary judgment. See Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, ___ ____ __________________________ 181 (1st Cir. 1989). Moreover, an appellate tribunal is not bound by the lower court's rationale but may affirm the entry of judgment on any independent ground rooted in the record. See, ___ e.g., Hachikian, 96 F.3d at 504; Garside, 895 F.2d at 49. ____ _________ _______ 6 III. ANALYSIS III. ANALYSIS Our analysis proceeds in five parts. A A Trademark infringement and unfair competition laws exist largely to protect the public from confusion anent the actual source of goods or services. See, e.g., Star Fin. Servs., ___ ____ _________________ Inc. v. AASTAR Mortgage Corp., 89 F.3d 5, 9 (1st Cir. 1996); ____ ______________________ DeCosta v. Viacom Int'l, Inc., 981 F.2d 602, 605 (1st Cir. 1992), _______ __________________ cert. denied, 509 U.S. 923 (1993); 3 J. Thomas McCarthy, McCarthy _____ ______ ________ on Trademarks and Unfair Competition 23.01 (3d ed. 1996). The ____________________________________ Lanham Act is cast in this mold. Generally speaking, the Act proscribes the unauthorized use of a service mark when the particular usage causes a likelihood of confusion with respect to the identity of the service provider.5 See WCVB-TV v. Boston ___ _______ ______ ____________________ 5Section 32(1) of the Lanham Act governs infringement claims. It stipulates in pertinent part: Any person who shall, without the consent of the registrant (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 . . . . 15 U.S.C. 1114(1) (emphasis supplied). Section 43(a) governs unfair competition claims. It stipulates in pertinent part: Any person who, on or in connection with any 7 Athletic Ass'n, 926 F.2d 42, 44 (1st Cir. 1991); see also Societe ______________ ___ ____ _______ des Produits Nestle, S.A. v. Casa Helvetia, Inc., 982 F.2d 633, _________________________ ___________________ 641 (1st Cir. 1992) (explaining in respect to trademarks that "only those appropriations . . . likely to cause confusion are prohibited"). Consequently, likelihood of confusion often is the dispositive inquiry in a Lanham Act case. See, e.g., WCVB-TV, ___ ____ _______ 926 F.2d at 44; Pignons S.A. de Mecanique de Precision v. __________________________________________ Polaroid Corp., 657 F.2d 482, 492 (1st Cir. 1981). So it is ______________ here. B B To demonstrate likelihood of confusion a markholder (or one claiming by, through, or under her) must show more than the theoretical possibility of confusion. See American Steel ___ _______________ Foundries v. Robertson, 269 U.S. 372, 382 (1926) (requiring _________ _________ probable confusion); Star, 89 F.3d at 10 (requiring evidence of a ____ substantial likelihood of confusion); accord 3 McCarthy, supra, ______ _____ 23.01[3][a]. Just as one tree does not constitute a forest, an ____________________ goods or services, . . . uses in commerce any word, term, name, symbol, or device . . . or any false designation of origin . . . which (A) is likely to cause confusion, ___________________________ or to cause mistake, or to deceive as to . . . the origin, sponsorship, or approval of [such person's] goods, services, or commercial activities by another person . . . shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such an act. 15 U.S.C. 1125(a) (emphasis supplied). 8 isolated instance of confusion does not prove probable confusion. To the contrary, the law has long demanded a showing that the allegedly infringing conduct carries with it a likelihood of confounding an appreciable number of reasonably prudent purchasers exercising ordinary care. See McLean v. Fleming, 96 ___ ______ _______ U.S. 245, 251 (1877); Mushroom Makers, Inc. v. R.G. Barry Corp., _____________________ ________________ 580 F.2d 44, 47 (2d Cir. 1978), cert. denied, 439 U.S. 1116 _____ ______ (1979); Coca-Cola Co. v. Snow Crest Beverages, Inc., 162 F.2d ______________ ___________________________ 280, 284 (1st Cir.), cert. denied, 332 U.S. 809 (1947). This _____ ______ means, of course, that confusion resulting from the consuming public's carelessness, indifference, or ennui will not suffice. See, e.g., United States v. 88 Cases, More or Less, Containing ___ ____ _____________ ___________________________________ Bireley's Orange Beverage, 187 F.2d 967, 971 (3d Cir.) (inferring _________________________ that "the legislature contemplated the reaction of the ordinary person who is neither savant nor dolt, [and] who . . . exercises a normal measure of the layman's common sense and judgment"), cert. denied, 342 U.S. 861 (1951); see also Indianapolis Colts, _____ ______ ___ ____ ___________________ Inc. v. Metropolitan Baltimore Football Club Ltd., 34 F.3d 410, ____ __________________________________________ 414 (7th Cir. 1994) (explaining that the Lanham Act does not "protect the most gullible fringe of the consuming public"). We typically consider eight factors in assessing likelihood of confusion: (1) the similarity of the marks; (2) the similarity of the goods (or, in a service mark case, the services); (3) the relationship between the parties' channels of trade; (4) the juxtaposition of their advertising; (5) the classes of prospective purchasers; (6) the evidence of actual 9 confusion; (7) the defendant's intent in adopting its allegedly infringing mark; and (8) the strength of the plaintiff's mark. See Star, 89 F.3d at 10; Sullivan, 867 F.2d at 29. While this ___ ____ ________ compendium does not conform easily to the peculiar facts of this case, it is not intended to be either all-encompassing or exclusive. See DeCosta v. CBS, Inc., 520 F.2d 499, 513-14 (1st ___ _______ __________ Cir. 1975), cert. denied, 423 U.S. 1073 (1976). The listed _____ ______ factors are meant to be used as guides. See Astra Pharmaceutical ___ ____________________ Prods., Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 1205 ____________ __________________________ (1st Cir. 1983). No one listed factor is determinative, and any other factor that has a tendency to influence the impression conveyed to prospective purchasers by the allegedly infringing conduct may be weighed by the judge or jury in gauging the likelihood of confusion. We completely agree with the authors of the Restatement that "[n]o mechanistic formula or list can set forth in advance the variety of factors that may contribute to the particular marketing context of an actor's use." Restatement (Third) of Unfair Competition 21 cmt. a (1995). Two related points are worth making. First, because the listed factors must be evaluated in context, any meaningful inquiry into the likelihood of confusion necessarily must replicate the circumstances in which the ordinary consumer actually confronts (or probably will confront) the conflicting mark. See, e.g., Libman Co. v. Vining Indus., Inc., 69 F.3d ___ ____ __________ ____________________ 1360, 1362 (7th Cir. 1995), cert. denied, 116 S. Ct. 1878 (1996); _____ ______ Black Dog Tavern Co. v. Hall, 823 F. Supp. 48, 55 (D. Mass. ______________________ ____ 10 1993). Second, Rule 56 places a special gloss upon the usual analytic approach. On summary judgment the reviewing court must decide whether the evidence as a whole, taken most hospitably to the markholder, generates a triable issue as to likelihood of confusion. See Sullivan, 867 F.2d at 29; Astra, 718 F.2d at ___ ________ _____ 1205; see also 3 McCarthy, supra, 23.11 (observing that, while ___ ____ _____ legal precedent governs the analysis, the result of each case is controlled by the totality of its facts). Applying these principles, we conclude that the Union bears the burden here of adducing "significantly probative" evidence, Anderson, 477 U.S. at 249-50 (citation omitted), ________ tending to show that an appreciable number of prospective voters (i.e., employees within the defined bargaining unit) were in fact likely to be confused or misled into believing that the service- marked campaign literature was produced, sent, or authorized by IAM. The Union has not reached this plateau. C C As we set the scene for the main thrust of our analysis, we acknowledge that the campaign stump is an odd stage for playing out a Lanham Act drama. In the typical commercial setting, confusion as to the source of goods or services occurs when there is an unacceptably high risk that a buyer may purchase one product or service in the mistaken belief that she is buying a different product or service. See, e.g., Star, 89 F.3d at 9. ___ ____ ____ But the instant case is well off the beaten track. It does not involve two entrepreneurs vying to sell competing products or 11 services in the traditional sense. Rather, IAM was angling to represent the workers and, although Winship opposed that effort, it was neither offering nor seeking to provide a similar service. In the vernacular of the marketplace, IAM was "selling" its services to prospective union members and Winship was "selling" a negative the lack of a need for any such services or service- provider. This twist has significant implications for a court's assessment of the likelihood of confusion. If we assume, favorably to the Union, that confusion as to the source of the documents bearing the IAM service mark may at least indirectly deter prospective purchasers (voters within the bargaining unit) from acquiring (voting for) IAM's representational services, that deterrent will exist only if, and to the extent that, confusion causes purchasers to be misinformed about the nature or value of the services. We think it follows inexorably that, if the electorate can readily identify Winship as the source of the promotional materials, the deterrent vanishes. See, e.g., ___ ____ McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511, 1519 n.11 ________ ______________________ (1995) (suggesting that once people know the source of a writing, they can evaluate its message, and, at that point, "it is for them to decide what is responsible, what is valuable, and what is truth") (citation and internal quotation marks omitted). In that event, there is no misleading as to the genesis of the letters, and the voters can assess whether the Winship-authored handouts accurately describe the Union's services, or, instead, are merely 12 a manifestation of Winship's no-holds-barred commitment to dissuade the voters from "purchasing" those services. Put another way, knowledge as to the source of the materials dispels incipient confusion. The Union attempts to confess and avoid. It contends that the recipients' ability to ascertain the source of the documents does not necessarily negate confusion. This contention hinges on the theory that employees may have thought that the letters, even if delivered by the company, were actual IAM documents which Winship procured and then draped in anti-union invective. But that theory does not fit the facts: patently, this is neither an instance in which an employer distributes copies of a notice previously sent by a union to employees elsewhere and adds anti-union commentary, nor one in which an employer makes minor emendations to an authentic union document. The letters and the invoice are composed around names and circumstances indigenous to this particular organizational effort. Among other things, the letters bear a date significant in its relation to the scheduled election; they address each Winship employee by name and home address; and they identify this employer. Source-identifiers specific to the Winship election are even more pervasive in the fictitious invoice. The Union's fallback position seems to be that, even if it is nose-on-the-face plain that the letters and the invoice are not replicas of genuine IAM materials, the affected employees still may have believed that they somehow were based on genuine 13 materials. We think this construct is both legally unsound and factually unsupported. In the first place, a recipient's ability to recognize that the alleged infringer, at a minimum, must have substantially added to or altered a document alleviates any confusion as to its immediate source. Cf. Warner Bros., Inc. v. ___ __________________ American Broadcasting Cos., 720 F.2d 231, 246 (2d Cir. 1983) ___________________________ (suggesting that lack of substantial similarity leaves "little basis" for asserting likelihood of confusion in a Lanham Act claim). In the second place, even indulging the arguendo assumption that the contrived documents were based on a real scenario, the alterations are sufficiently extensive that an ordinary recipient, possessing a modicum of intelligence, could not help but recognize that Winship had tampered so substantially with the documents that they could no longer be perceived as emanating from the Union.6 In other words, the documents' credibility would depend on the voters' assessment of whether Winship was telling the truth. See McIntyre, 115 S. Ct. at 1519 ___ ________ ____________________ 6An analogous principle in copyright law is instructive. Absent direct evidence of copyright infringement, a plaintiff must prove "substantial similarity" between the copyrighted and contested materials. See, e.g., NEC Corp. v. Intel Corp., 10 ___ ____ _________ ___________ U.S.P.Q.2d 1177, 1183 (N.D. Cal. 1989). The applicable test is "whether the work is recognized by an observer as having been taken from the copyrighted source." Id. at 1184. Even if a work ___ is copied, however, no copyright infringement exists if substantial changes render the work unrecognizable. See v. ___ Durang, 711 F.2d 141, 142 (9th Cir. 1983) (affirming grant of ______ summary judgment for the defendant); NEC Corp., 10 U.S.P.Q.2d at _________ 1186-87; cf. A. Dean Johnson, Music Copyrights: The Need for an ___ ___________________________________ Appropriate Fair Use Analysis in Digital Sampling Infringement _________________________________________________________________ Suits, 21 Fla. St. U. L. Rev. 135, 158-59 (1993) (noting greater _____ likelihood of fair use in copyright cases if alterations render an original music recording unrecognizable). 14 n.11 (discussing the value of knowing "the identity of the source" for the purpose of judging the truthfulness of ideas contained in a writing). We conclude, therefore, with regard to these documents, that as long as employees can ascertain either who authored or who substantially modified the literature, they will readily recognize the entire document (including the letters, in one case, and the invoice, in the second case) as propaganda, and they will be in a position to gauge its accuracy accordingly. This emphasis on source recognition takes into account the setting and the juxtaposition of the parties. Labor- management relations have not mellowed since Justice Clark observed three decades ago that representational campaigns "are ordinarily heated affairs . . . frequently characterized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions." Linn v. United Plant Guard Workers of Am., Local ____ _________________________________________ 114, 383 U.S. 53, 58 (1966). Because exaggeration, sometimes ___ crossing the line into outright falsehood, is a staple in such campaigns, "consumers" (i.e., affected workers) are on notice that both sides likely will embellish with scant regard for the confining restraints imposed by the truth. See Baumritter Corp. ___ ________________ v. NLRB, 386 F.2d 117 (1st Cir. 1967) (explaining that ____ inaccuracies are indigenous to campaign propaganda in the labor relations milieu). The acrimonious literature disseminated by both parties indicates that this campaign was no exception to the 15 rule.7 D D Having woven the contextual tapestry against which the Union's claims must be viewed, we turn now to the octet of factors that typically inform the likelihood of confusion. While the strange configuration of this case renders certain of those factors irrelevant or, at least, difficult to apply square pegs never fit snugly in round holes we make the effort in the interest of completeness. Moreover, other relevant circumstances compensate to some degree for this lack of fit and we intersperse them throughout our discussion. We deem such circumstances to be of especially great importance here precisely because this case falls well outside the customary confines of the Lanham Act. 1. Similarity of Marks. The service mark used by 1. Similarity of Marks. ____________________ Winship is not merely similar; it is identical a photocopied reproduction. Still, similarity is determined on the basis of the designation's total effect, see, e.g., Pignons, 657 F.2d at ___ ____ _______ 487 (considering additional, source-identifying words printed on goods and substantial differences in packaging), and infringement "does not exist, though the marks be identical and the goods very similar, when the evidence indicates no [likelihood of confusion]." James Burrough Ltd. v. Sign of the Beefeater, Inc., ___________________ ___________________________ ____________________ 7For example, one IAM flier of the "when did you stop beating your wife?" variety, asks: "WHAT LIES OR HALF TRUTHS DO[ES WINSHIP] PLAN TO SPREAD DURING OUR DEBATE?" The IAM materials also describe anticipated "company tactics" or "tricks" in unflattering terms and warn employees to "LOOK OUT FOR CORPORATE TRAPS." The Winship literature, discussed above, speaks for itself. 16 540 F.2d 266, 274 (7th Cir. 1976). What is more, we have recognized that in certain circumstances otherwise similar marks are not likely to be confused if they are used in conjunction with clearly displayed names, logos or other source-identifying designations of the manufacturer. See Aktiebolaget Electrolux v. ___ _______________________ Armatron Int'l, Inc., 999 F.2d 1, 4 (1st Cir. 1993); Pignons, 657 ____________________ _______ F.2d at 487. Here, the lengthy propagandistic message that Winship printed in large type on the fictitious invoice and the conspicuous, easily identifiable fliers it sent to introduce the letters dilute the inference that might otherwise be drawn from the similarity between the marks. 2. Similarity of Services. Because the parties do not 2. Similarity of Services. ______________________ offer competing services, there is no similitude. Furthermore, even if the documents are evaluated in the abstract, we do not think that any reasonable person, viewing them in their entirety and in conjunction with the accompanying materials, would find them similar to IAM's authentic campaign literature. On the one hand, any similarity to actual IAM materials is limited to the vitriolic tone, the presence of the IAM service mark, and the facsimile signature. On the other hand, unlike any genuine IAM communication, the letters are postdated by a full year and address the employees as if they already had opted in favor of union representation. The next piece of propaganda (the invoice) contains anti-union messages that are longer and much more prominent than any other text. And, moreover, in stark contrast to handbills distributed by IAM which invariably urged 17 employees to vote "yes" (i.e., for a union), the letters at issue were attached to rabidly anti-union fliers exhorting employees to vote "no" (i.e., against a union). In short, the bogus letters, when compared to the real McCoy, are distinctive in appearance and antithetical in content. Given such gross dissimilarities, it cannot reasonably be inferred that ordinarily prudent workers would be likely to confuse the source of the letters. See Senco ___ _____ Prods., Inc. v. International Union of Elec. Workers, 311 F. _____________ ______________________________________ Supp. 590, 592 (S.D. Ohio 1970) (finding no likelihood of confusion as to sponsorship of handbills circulated by a union bearing employer trademark in bold print on the first line, followed by union identifiers of equal prominence). 3-5. Channels of Trade and Advertising; Classes of 3-5. Channels of Trade and Advertising; Classes of ________________________________________________ Prospective Purchasers. Following circuit precedent, see Equine Prospective Purchasers. ______________________ ___ ______ Technologies, Inc. v. Equitechnology, Inc., 68 F.3d 542, 546 n.5 __________________ ____________________ (1st Cir. 1995), we address the next three factors in the ensemble. The parties' channels of trade are widely disparate (reduced to bare essence, IAM sells representational services whereas Winship sells nursing home beds), and there is no evidence that the channels advertising those services are similar. To be sure, as the election campaign picked up steam, both parties propagandized (and, in that sense, advertised) through the same medium (print), and both of them targeted exactly the same narrowly-defined cadre of individuals. The class of prospective purchasers is necessarily restricted to 18 those individuals and is, therefore, identical. Still, that identicality does not advance the Union's cause in the special circumstances of this case. On this point, the requisite inquiry is not limited merely to determining whether the class of prospective purchasers is the same or different. Instead, a court called upon to assay likelihood of confusion must ponder the sophistication of the class, thereby taking account of the context in which the alleged infringer uses the mark. See, e.g., Astra, 718 F.2d at 1206-07; ___ ____ _____ HQ Network Sys. v. Executive Headquarters, 755 F. Supp. 1110, ________________ ______________________ 1118-19 (D. Mass. 1991). Here, the organizational effort began in May. Among other things, the Union held open meetings and sent the affected workers periodic "organizing updates." Thus, by late July when Winship began to distribute the challenged documents persons within the class could not help but know of the ongoing campaign and of its excesses. We must presume that the class members are of normal intelligence, see McLean, 96 U.S. at 251; Church of the Larger ___ ______ _____________________ Fellowship, Unitarian Universalist v. Conservation Law Found. of __________________________________ ___________________________ New Eng., Inc., 221 U.S.P.Q. 869, 873 (D. Mass. 1983), and the ______________ previous months' electioneering would have given them a certain degree of enforced sophistication. Common sense dictates that this group above all others would filter the rivals' claims through the seine of this knowledge. Cf. Linn, 383 U.S. at 60-62 ___ ____ (discussing the NLRB's toleration of abusive and inaccurate statements made during organizational campaigns and agreeing that 19 the ultimate appraisal of such statements must be left to the good sense of those voting in the elections). Accordingly, class members were especially unlikely to be misled by Winship's unauthorized use of the IAM mark. 6. Actual Confusion. IAM proffers Dale Hartford's 6. Actual Confusion. _________________ affidavit as the mainstay of its case (indeed, its solitary piece of evidence) on the issue of actual confusion. The affidavit states briefly that "several" employees asked whether Hartford had in fact written the letter that bore his signature.8 It also reports that one employee questioned whether she would be required to pay $300 in dues and a $200 initiation fee. Hartford opines that "these figures seem to have had to have come from [the apocryphal union invoice]." This evidence, standing alone, is insufficient to prove actual confusion. The fundamental problem with the Hartford affidavit is that, even taking its contents as literally true, it does not undermine what is perfectly obvious from a reading of the record: no person of ordinary prudence and normal intelligence, aware of what was happening around her, would have been confused as to the source or sponsorship of the letters. For one thing, the inquiries to which Hartford alludes reveal at most that employees doubted whether he would have written a letter unfavorable to the very cause he had labored to promote. On their face, these ____________________ 8Although Hartford recalled that these statements were made in front of approximately ten other employees at a union meeting, he claimed that he could not locate the list of attendees and, consequently, could not name either the persons who made inquiry of him or those who overheard the queries. 20 inquiries do not evince actual confusion as to the source of the jury-rigged documents. See Restatement (Third) of Unfair ___ Competition 23 cmt. c (1995) ("Evidence of inquiries by customers as to whether the plaintiff and the defendant are associated . . . may not establish the existence of actual confusion if the nature of the inquiries indicates that consumers perceive a difference between the designations and are skeptical of the existence of a connection between the users."). For another thing, skepticism is particularly rampant and wise as to claims made in the course of any organizing ___ drive. In the course of this organizing drive a struggle which ____ incited more than its share of hyperbole on both sides class members had ample reason to be skeptical. They must have known that Winship distributed the fliers (which embodied the letters), and they therefore knew that the letters had to be viewed in light of Winship's motivation. In all events, forewarned is forearmed, see Miguel de Cervantes, Don Quixote de la Mancha ___ __________________________ (circa 1615), and, here, the Union disseminated literature in the early going predicting that management would stoop to dubious tactics. The question about dues is an even thinner reed. A lone inquiry does not indicate probable confusion of an appreciable number of purchasers. See Mushroom Makers, 580 F.2d ___ ________________ at 47. Regardless, this lone inquiry which questioned the veracity of the prediction concerning union dues does not ________ indicate confusion as to the source of the fictitious invoice. ______ 21 See Pignons, 657 F.2d at 490 (finding consumer's letter ___ _______ expressing surprise at perceived affiliation between competing companies "clearly insufficient" to prove actual confusion). The Union strives to persuade us that, no matter how paltry the evidence of actual confusion, it is nonetheless adequate to survive testing on summary judgment where we must accept all reasonable inferences favorable to the nonmovant. We are not convinced. The core purpose of the summary judgment procedure is to "pierce the boilerplate of the pleadings" and evaluate the proof to determine whether a trial will serve any useful purpose. Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, _____ ________________________ 794 (1st Cir. 1992), cert. denied, 507 U.S. 1030 (1993). _____ ______ Consequently, summary judgment cannot be sidestepped by pointing to evidence that is merely colorable or suggestive, see, e.g., ___ ____ Mack, 871 F.2d at 181, or evidence that lacks substance, see, ____ ___ e.g., Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. ____ _______ _________________ 1991), cert. denied, 504 U.S. 985 (1992), or evidence that is _____ ______ inherently incredible, see, e.g., United States v. Joost, 92 F.3d ___ ____ _____________ _____ 7, 14 (1st Cir. 1996). In this instance, the Union submitted no affidavits from any individuals who personally received the campaign literature,9 and we think that it is inherently implausible to ____________________ 9In point of fact, the only such affidavit in the record that of an employee named Gail Snipe states unequivocally that she "recognized all of the materials . . . to be my employer's campaign materials." She adds: "The face of the documents as well as the context in which the documents were presented made it clear that the campaign materials were from the employer, not the IAM." 22 infer from the inquiries described by Hartford that prospective voters actually were confused as to the source of the materials. The summary judgment paradigm requires us to draw and respect only reasonable inferences; we need not infer that which is __________ farfetched or fantastic. See Sheinkopf v. Stone, 927 F.2d 1259, ___ _________ _____ 1262 (1st Cir. 1991); Medina-Munoz v. R.J. Reynolds Tobacco Co., ____________ _________________________ 896 F.2d 5, 8 (1st Cir. 1990); Raskiewicz v. Town of New Boston, __________ ___________________ 754 F.2d 38, 45 (1st Cir.), cert. denied, 474 U.S. 845 (1985). _____ ______ Here, the face of the documents, the accompanying fliers, the environment in which they were distributed, and the lack of significantly probative evidence of actual confusion combine to render unreasonable the inference that IAM would have us draw. 7. Intent. IAM relies heavily on the principle that 7. Intent. ______ when an alleged infringer intentionally copies a trademark, it may be presumed that she intended to cause confusion and profit thereby.10 See Sullivan, 867 F.2d at 34. But the presumption is ___ ________ inapposite in situations where there is no persuasive evidence of any intent to use the mark to suggest official sponsorship. See ___ WCVB-TV, 926 F.2d at 45-46 (attaching considerable importance to _______ the alleged infringers' contemporaneous offer to broadcast disclaimers, thus making clear that they were not official sponsors of the trademarked product). ____________________ 10This rebuttable presumption works with maximum efficiency in the commercial setting. There, an infringer typically copies a trademark to palm off her own goods as those of a recognized manufacturer, thereby free riding on the markholder's reputation and goodwill. See generally McCarthy, supra, 25.01. The ___ _________ _____ presumption works less well in cases that do not involve competitors. 23 The template of this case is similar to that of WCVB- _____ TV. Winship incorporated the bogus documents in fliers __ prominently displaying anti-union commentary and containing pleas by named managers for votes against unionization. In addition, the fake invoice itself includes what amounts to a conspicuous disclaimer. Under the circumstances, no reasonable factfinder could conclude, notwithstanding Winship's purposeful misappropriation of the IAM service mark, that the company intended to mislead employees about the source of the handouts. 8. Strength. Under the Lanham Act strong marks enjoy 8. Strength. ________ the greatest protection against infringement. See Aktiebolaget, ___ ____________ 999 F.2d at 5; Pignons, 657 F.2d at 492. The IAM service mark is _______ robust, having been duly registered and widely promoted for over thirty years. But the muscularity of a mark, in and of itself, does not relieve the markholder of the burden to prove a realistic likelihood of confusion. See Aktiebolaget, 999 F.2d at ___ ____________ 5; Pignons, 657 F.2d at 492. Because the Union has utterly _______ failed to produce evidence sufficient to meet that burden, see ___ supra, the mark's strength cannot carry the day. _____ E E After giving due weight to each factor and considering the unique circumstances that necessarily inform our analysis, we find no colorable basis for a likelihood of confusion, and, hence, no trialworthy Lanham Act claim. In reaching this conclusion we stress the significance of the factual setting. Here, the ambiance powerfully influenced the impression conveyed |