UNITED STATES DISTRICT COURT SOUTHERN ... - Nymag

Case 1:09-cv-21893-WMH Document 16 Entered on FLSD Docket 07/31/2009 Page 14 of 24
Evidence of actual confusion cannot be based on speculation, “pure conjecture or a
fetching narrative alone.” Barbeque Marx, Inc., 235 F.3d at 1045 citing Libman Co. v. Vining
Indus., Inc., 69 F.3d 1360, 1363 (7th Cir. 1995). Here, Plaintiffs fail to plead any facts that
support a likelihood of confusion claim other than to cite to a single quote in a newspaper article
to which Plaintiffs apply their own speculation and conjecture.
Plaintiffs allege that in a newspaper article, one patron stated “in L.A., I used to go to MR
CHOW weekly.” (Compl. 69.) Plaintiffs then speculate that “she could have only been
referring to the Beverly Hills MR CHOW restaurant, mistakenly believing that it was affiliated
with Defendants’ restaurant.” (Comp. 69.) However, Plaintiffs’ speculation and conjecture
about what this unknown “patron” may have meant cannot substitute for evidence of actual
confusion. Furthermore, Plaintiffs fail to attach this alleged article or provide any factual
allegations identifying the source of the alleged article.
G. No Likelihood of Confusion as a Matter of Law
Here, the two strongest factors when assessing the likelihood of confusion, the strength of
the plaintiff’s mark and evidence of actual confusion, weigh unequivocally in Philippe’s favor.
Nearly all of the remaining factors, such as the dissimilarity of the marks and the heightened
degree of customer care, fall strongly in Philippe’s favor as well. Even when accepting the wellpled
allegations as true and viewing them in the light most favorable to Plaintiffs, the Amended
Complaint evidences that there is no likelihood of confusion as a matter of law, and therefore
Counts I through VI and Count VIII should be dismissed with prejudice.
IV. COUNT IX FAILS TO STATE A CLAIM FOR CONVERSION
Conversion is the “wrongful taking of personal property with the intent to exercise an
ownership which is inconsistent with the real owner’s right of possession.” Idearc Media Corp.
v. Kimsey & Assocs., P.A., 2008 WL 2852444 *1 (M.D. Fla. 2008) (emphasis added). It is
universally held that “a trademark is not tangible personal property, but rather is intangible
intellectual property having no existence apart from the good will of the product or service it
symbolizes.” Fin. Matters, Inc. v. Pepsico, Inc., 1993 WL 378844 (S.D.N.Y. 1993).
One cannot dispense with the carefully constructed requirements for trademark protection
by blithely claiming that a defendant “converted” some symbol of plaintiff which may or may
not be capable of trademark protection:
-14-
RICHMAN GREER, P.A.
Miami • West Palm Beach