American Farm Bureau Federation v. Alabama Farmers Federation

Citations: 935 F. Supp. 1533; 1996 U.S. Dist. LEXIS 12657; 1996 WL 494300Docket: Civil Action 94-A-1408-N

Court: District Court, M.D. Alabama; August 22, 1996; Federal District Court

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The American Farm Bureau Federation (Plaintiff) initiated a lawsuit on October 31, 1994, against the Alabama Farmers Federation and its affiliates (Defendants), alleging unauthorized use of its federally registered trademark "FARM BUREAU." The Plaintiff claims this use violates a prior settlement agreement, as well as federal and state trademark infringement and unfair competition laws. Jurisdiction is established under various statutes due to complete diversity of citizenship and the amount in controversy exceeding $50,000. A bench trial was held on November 27, 1995, where the court reviewed witness testimony, exhibits, and legal briefs. 

The American Farm Bureau Federation is a national organization advocating for the interests of farmers and ranchers, representing over 4.5 million member families across the U.S. and Puerto Rico. It has continuously used its trademarks, including "FARM BUREAU," since its founding in 1919, and these marks are registered with the United States Patent and Trademark Office, making them valid and incontestable under the Trademark Act of 1946.

American and its state member organizations, along with affiliated companies, notify the public of their ownership of the FARM BUREAU mark through the registration symbol and various promotional methods. American licenses its state member organizations to use this mark, which has been heavily promoted since the 1920s. Many of these organizations incorporate the FARM BUREAU name in their titles, such as "Georgia Farm Bureau Federation." The mark is extensively utilized across multiple platforms, including newsletters, brochures, and media, particularly in relation to insurance services. Over fifty affiliated insurance companies identify as "Farm Bureau Insurance," further solidifying the mark's association with American and its state organizations.

AFF, formerly the Alabama Farm Bureau Federation, is the successor organization to American's original Alabama member entity, which was established in 1921. After promoting the FARM BUREAU mark for decades, AFF severed its ties with American in 1981. It has approximately 384,000 members, including a significant number of associate members who primarily join for insurance benefits. The Alfa Insurance Companies, formed in the mid-20th century, provide insurance to Farm Bureau members in Alabama and maintain a close affiliation with AFF, sharing resources like marketing and legal departments.

In 1983, American filed a trademark infringement lawsuit against AFF after it continued using the FARM BUREAU mark post-affiliation termination, following disputes regarding insurance sales outside Alabama.

Alabama Farm Bureau Federation (AFF) and its two insurance affiliates, Alfa Mutual Insurance Company and Alfa Mutual Fire Insurance Company, collectively referred to as the "Contracting Defendants," intervened in a legal matter that culminated in a settlement agreement executed on March 20, 1986. The agreement mandated that if AFF did not reaffiliate with American by the end of 1986, it, along with its affiliates, must phase out the use of the name "Farm Bureau" by December 31, 1989, with certain exceptions for the insurance companies until December 31, 1991. AFF was also required to encourage its member county organizations to cease using "Farm Bureau" by the same deadline and would deny membership to any organization that did not comply.

The agreement allowed American to form a new affiliate in Alabama post-1986, prohibiting the use of "Farm Bureau" in its name until 1992. A moratorium lasting from January 1, 1990, to December 31, 1991, was established during which the Contracting Defendants could not use the "Farm Bureau" mark, while American could use it only under limited circumstances. In 1989, American formed the "Alabama Federation of Agricultural Producers," which later renamed itself to the Alabama Farm Bureau Federation in January 1992, as permitted by the agreement.

American alleges that AFF breached the Settlement Agreement by continuing to use the "Farm Bureau" mark in various instances, which is supported by evidence. Notably, an engraved headstone reading "ALABAMA FARM BUREAU" was installed at the Defendants' headquarters on the same day the Settlement Agreement was executed and was only covered by a bronze plaque reading "Alabama Farmers Federation" in 1993, following a complaint from American. Additionally, in 1987, an employee of Alfa Marketing Services instructed a telephone directory service to cross-reference "Alfa Insurance" with "Alabama Farm Bureau Insurance," resulting in widespread usage of the "Farm Bureau" mark in numerous telephone directories across Alabama, Mississippi, and Georgia.

Cross-references linking "Farm Bureau Insurance" and "Alfa Insurance" were established in telephone directories as per an agreement between Alfa Companies and Berry Network, which required Berry to maintain these references until instructed otherwise. Despite a Settlement Agreement mandating cessation of the FARM BUREAU mark's use by December 31, 1989, the Alfa Companies delayed notifying Berry until April 3, 1992, allowing references to persist in directories published until 1995. Additionally, the Alabama Farmers Federation (AFF) and its members continued using the FARM BUREAU mark in directory listings beyond the deadline, with observations from AFF's Director indicating ongoing listings as late as February 1991. 

Alfa Companies also distributed approximately 2.5 million insurance brochures from 1990 to 1994 that misrepresented their affiliation with the Alabama Farm Bureau, failing to disclose the termination of that relationship. These brochures, approved by legal counsel despite ongoing complaints about the FARM BUREAU mark's use, were reprinted over fifty-five times at a cost of around $200,000. Furthermore, an aggressive advertising campaign was launched in 1987 to promote the new name "Alfa," encompassing various media, including television and radio.

Commercials for Alfa Insurance were extensively broadcast across various media platforms, including around one hundred radio stations, twenty television stations, and roughly one hundred newspapers, effectively saturating the state. A representative television commercial featured a conversation between a child and parents, emphasizing continuity in service despite a name change from Farm Bureau Insurance to Alfa Insurance, concluding with a new name suggestion for the child. 

In March and April 1995, during ongoing litigation, Creative Consulting aired a commercial on WSFA-TV that utilized the FARM BUREAU mark to celebrate the station's fortieth anniversary. This advertisement included nostalgic visuals from earlier Farm Bureau commercials and mentioned the name change to Alfa Insurance, displaying a bumper sticker transition from Farm Bureau to Alfa. Notably, it omitted information regarding Alfa's disaffiliation with any Farm Bureau organization. The content was approved by Ken Wallis, General Counsel for Alfa Companies, and the commercial aired over fifty-five times, generating more than 875,000 impressions across Alabama and parts of Georgia and Florida. WSFA-TV aired the commercial as part of a special anniversary deal valued at $7,430 in exchange for an additional advertising purchase from Alfa.

Furthermore, the Federal Election Commission (FEC) requires political action committees like ELECT to register and report periodically, which includes details about fundraising and contributions. ELECT registered with the FEC in 1978 under the name associated with the Alabama Farm Bureau Federation but failed to update its listing after the organization changed its name in 1987 to the Alabama Farmers Federation, keeping the outdated "Farm Bureau" reference.

American, in a letter dated May 22, 1992, demanded compliance with a Settlement Agreement from the Defendants, asserting that Alfa agents were still using the FARM BUREAU mark and providing evidence through 119 telephone directory listings from Alabama and Georgia featuring "Farm Bureau."

A letter demanded that ALFA immediately cease all use of the "Farm Bureau" name, including by its subsidiaries and affiliates, and deny membership to county organizations using the name. The letter requested a prompt response detailing steps taken to comply. In a reply dated June 25, 1992, the Defendants characterized references to the "Farm Bureau" name as "vestigial uses" and claimed they had already begun phasing out the name prior to receiving the letter. However, investigations revealed that efforts to eliminate cross-references had only commenced in April 1992, contradicting their assertions. Despite the Defendants' claims of compliance, additional uses of the "Farm Bureau" name were discovered, including new telephone directory listings and corporations retaining the name. On December 18, 1992, American informed Defendants of these findings, alleging the listings misled the public into believing ALFA's products were state-sanctioned. A request for a thorough investigation into continuing uses of the mark was reiterated. On December 22, 1992, American's President urged cooperation between the organizations to avoid litigation. In response to ongoing complaints, an Alfa executive instructed employees to clarify their non-affiliation with "Farm Bureau" when inquiries arose. The Defendants' subsequent letter on January 8, 1993, minimized the violations as "isolated uses" and failed to address broader remedial actions, maintaining a pattern of limited engagement with American's concerns.

Defendants stated they did not find it necessary to conduct a comprehensive investigation into their organization as requested by American. They assured that they had removed any instances of using the term "Farm Bureau" and pledged to act swiftly if any such uses were identified. However, evidence revealed that Defendants were aware of ongoing uses of "Farm Bureau," including promotional brochures, and intended to conceal these uses. Correspondence between American and Defendants persisted until mid-1993, with Defendants downplaying the violations as "residual but minor" and resisting an internal investigation, while repeatedly asserting there were no current uses of the term and that all past uses had ceased. Despite these claims, Defendants distributed insurance brochures featuring the "Farm Bureau" mark and later aired a commercial referencing "Farm Bureau."

Evidence presented at trial indicated significant confusion regarding the relationship between Alfa and Farm Bureau. The Alabama Farm Bureau received misdirected calls and checks intended for Alfa, and misidentifications appeared in local media. Two surveys were introduced to assess this confusion. American highlighted a survey by Dr. Verne Kennedy, which revealed that a substantial proportion of both associate and active members of the Alabama Farmers Federation (AFF) mistakenly identified themselves as members of the Alabama Farm Bureau. The survey also indicated that many participants were unaware that AFF and Alabama Farm Bureau were distinct organizations.

A survey indicated that 16.7% of associate members and 22.3% of farm members perceived the Alabama Farmers Federation (AFF) and the Alabama Farm Bureau as the same organization. Conversely, 63% of associate members and 62% of farm members identified them as different, with 18% of associate members and 17.7% of farm members attributing this difference to insurance, despite the Alabama Farm Bureau not offering insurance at the time of the survey. Dr. Kennedy concluded that there was considerable confusion regarding the two organizations, although the Alabama Farm Bureau was favored by members, with 58.3% of associate members and 62% of farm members holding a favorable opinion of it compared to 40.6% and 45% for AFF, respectively. When asked about name preference, 63.3% of AFF associate members and 57.7% of AFF farm members preferred the Farm Bureau name significantly over AFF. 

In anticipation of litigation, the Defendants commissioned Dr. Jim Kitchens to survey public perception relating to Alfa and Farm Bureau. This survey, with a 95% confidence level, revealed that while 81% of Alabamians had heard of Farm Bureau, only 2% believed it was affiliated with Alfa. Notably, around 249,602 residents associated "Farm Bureau" with having insurance, although only approximately 11,300 had actual Farm Bureau insurance at the time.

Regarding liability, both parties agreed that only the Lanham Act and breach of contract claims were relevant, as other counts shared the same liability standard. American contended that the Settlement Agreement required the Defendants to cease using the FARM BUREAU mark by December 31, 1989, while the Defendants argued for a more flexible interpretation that allowed historical use without public confusion. The court emphasized that contract interpretation should adhere to the ordinary meaning of its terms and be viewed in context, ultimately siding with American’s interpretation and rejecting the Defendants' argument.

A contract is considered unambiguous if it yields only one reasonable interpretation, as established in Wayne J. Griffin Elec. Inc. v. Dunn Constr. Co. The mere presence of differing interpretations from the parties does not create ambiguity. When a contract’s language is clear, courts cannot modify the agreement simply to relieve a party from undesirable outcomes. The Settlement Agreement's provisions are explicit: if [AFF] does not reaffiliate with AMERICAN by December 31, 1986, it, along with Alfa Mutual Insurance Company and its affiliates, must begin phasing out the use of the "Farm Bureau" name by January 1, 1987, completing this phase-out by December 31, 1989. After this date, they are prohibited from using the name in any capacity, except for maintaining their corporate names until December 31, 1991. Webster's definitions of "use" and "phase out" support the interpretation that the Defendants must eliminate all associations of the "Farm Bureau" mark with their activities. The court finds that the prohibition against "any manner" of use after December 31, 1989, extends beyond just those uses linked to their services, rejecting the Defendants' argument based on the in pari materia doctrine, which would render parts of the agreement redundant. Consequently, the language prohibits all forms of use of the mark, regardless of the likelihood of confusion.

The interpretation of the Settlement Agreement emphasizes the necessity of filing corporate charters with the state, which are publicly accessible. The use of the FARM BUREAU mark in maintained charters would violate this agreement, as there is no exception permitting such use. The court notes its role is limited to interpreting contracts made by the parties, not rewriting them, and finds that the Defendants breached the Settlement Agreement in various ways, including through headstone listings, directory assistance references, insurance brochures, and commercials that displayed the FARM BUREAU mark after December 31, 1989. Some breaches occurred before this date as new uses of the mark were implemented in 1987 during a period when the Defendants were required to phase out its use. 

Additionally, the Defendants' actions are characterized as trademark infringement under the Lanham Act, which prohibits unauthorized use of a registered trademark that may cause confusion. The FARM BUREAU mark, being registered and incontestable, was used without authorization by the Defendants, leading to a breach of both the Settlement Agreement and trademark infringement. Trademark infringement can arise when the public is misled to believe that the infringer's products are associated with or endorsed by the registrant, underlining the importance of trademarks as indicators of source and quality. The unauthorized use of the FARM BUREAU mark misleads the public regarding sponsorship and approval from the registrant, constituting a violation of trademark rights.

The quality and value of a registrant's trademark are under the registrant's control, as established in Professional Golfers Ass'n of America v. Bankers Life. Even if a defendant's product is of equal or higher quality, unauthorized use of the trademark still constitutes infringement because it undermines the registrant's ability to manage its reputation. Former licensees pose a unique risk of confusion, as they are often mistakenly associated with the registrant despite the lack of current authorization. This can mislead the public regarding the quality of the products associated with the trademark, potentially damaging the registrant's reputation. The Eleventh Circuit mandates that once a licensing agreement ends, the former licensee's right to use the mark also ends, and any continued use is considered infringement.

In the case at hand, the court examines whether the Defendants' use of the FARM BUREAU mark misrepresented their affiliation with the registrant, American. Evidence of trademark infringement was found in several instances:

1. **Engraved Headstone**: The headstone at the headquarters, erected during the Settlement Agreement, remained visible long after it was supposed to be removed, suggesting a non-existent affiliation with Farm Bureau.

2. **Telephone Directory Cross-references**: Listings indicating "Farm Bureau Insurance" alongside "Alfa Insurance" mislead the public into believing a connection exists.

3. **Insurance Brochures**: Brochures inaccurately claim that Alfa was founded by the Alabama Farm Bureau without clarifying the lack of current affiliation, misleadingly implying sponsorship.

4. **Television and Radio Commercials**: A 1987 advertising campaign misleadingly stated that only the name changed when, in fact, the sponsorship also changed, further contributing to public confusion.

These uses collectively constitute trademark infringement due to their misleading implications regarding the relationship between the Defendants and American.

Alfa, unlike other Farm Bureaus nationwide, has disaffiliated from American, which owns the FARM BUREAU trademark. Despite this disaffiliation, commercials suggest a continued relationship, constituting trademark infringement. The WSFA-TV commercial misleadingly implies that Alfa's status remains unchanged since its earlier branding as "Farm Bureau," ignoring that Alfa no longer licenses the FARM BUREAU mark from American, which previously ensured product quality. Additionally, the listing for ELECT, described as the Political Action Committee of the Alabama Farm Bureau Federation, creates a false impression of affiliation, further indicating trademark infringement. The court concludes that Alfa and the Alabama Farm Bureau Federation (AFF) intended to exploit confusion over their connection to Farm Bureau and American, which is actionable as trademark infringement under existing law. Evidence of consumer confusion supports this claim, as actual confusion among some customers indicates a broader likelihood of confusion. The court finds the defendants liable for trademark infringement and breach of contract, paving the way for American's claims for relief.

Monetary awards under the Lanham Act allow plaintiffs who establish a violation of trademark rights to recover the following damages: (1) the defendant's profits, (2) any damages sustained by the plaintiff, and (3) costs of the action. The court will assess profits and damages, requiring the plaintiff to prove only the defendant's sales, while the defendant must substantiate all claimed costs. Damages may be increased up to three times the actual damages found, and the court can adjust profits awarded if deemed inadequate or excessive, providing compensation rather than a penalty. In exceptional cases, reasonable attorney fees may also be awarded to the prevailing party. This recovery is cumulative, permitting awards of both the plaintiff's damages and the defendant's profits. The statute grants significant discretion to district courts regarding relief, with no strict rules governing its form or amount.

In this context, American claims the defendants owe a reasonable royalty for misuse of the FARM BUREAU mark, along with corrective advertising costs, defendants' profits, attorney fees, and seeks treble damages and punitive damages for common law infringement. The reasonable royalty measure reflects the economic benefit lost by the trademark owner due to infringement, calculated as if a license had been granted at the infringement's onset. Courts assess the license price based on the actual value appropriated, using reasonable estimates when precise measurements are unavailable.

American utilized a "hypothetical license" methodology to establish a reasonable royalty for the use of the FARM BUREAU mark, which the court supports. Historically, Defendants paid $3.50 per member for affiliation benefits, but this amount includes costs for administration and other services beyond just the mark's value. Consequently, using the full $3.50 would overestimate the mark's worth.

American suggests an alternative valuation based on a 1992 Kennedy survey, indicating that 12.7% of associate and 25.3% of farm members mistakenly believed they were affiliated with the Alabama Farm Bureau. This led to an estimated 286,791 "at risk" members, representing potential losses for Defendants had these members realized the truth. The reasonable royalty was further refined by calculating that approximately 18.1% of the $3.50 fee accounted for administrative expenses, leaving roughly $2.87 for the mark’s value. Multiplying this figure by the "at risk" members yields a potential monetary value of $823,090.

Defendants argue this estimate is inflated, claiming that many "at risk" members would have remained loyal and that the $2.87 figure encompasses broader benefits. However, the court finds these arguments unpersuasive as the reasonable royalty is intended to be an estimate, not an exact figure. The court underscores the principle that the wrongdoer must bear the uncertainties created by their actions, thus favoring the plaintiff's approach to estimating damages.

The reasonable royalty for the Defendants' unauthorized use of the FARM BUREAU mark is determined to be $0.48 per member annually, totaling $823,090.00 owed to American. This amount is significantly lower than the fees charged by other state Farm Bureaus for similar sublicenses. The court acknowledges the difficulty in quantifying the actual value the Defendants derived from their infringement, yet it aims to establish a fair compensation based on the evidence presented.

Additionally, the court finds that American is entitled to damages for corrective advertising due to the confusion caused by the Defendants' misuse of the FARM BUREAU mark. Surveys indicate a substantial increase in misperceptions among Alabama residents regarding their affiliation with Farm Bureau insurance, rising from approximately 50,000 to 249,602 individuals believing they had insurance with Farm Bureau from 1992 to 1995. This confusion was exacerbated by the Defendants' misleading advertising practices. 

The court references the Big O Tire Dealers case to support the need for corrective advertising damages, emphasizing that without such remedies, the trademark owner's exclusive rights would lack enforcement. The corrective advertising damages are calculated based on the Defendants' $169,552.00 expenditure on misleading advertising, with a 75% reduction applied in line with Federal Trade Commission guidance, reflecting that a dollar-for-dollar expenditure for corrective advertising is excessive.

A total expenditure of $377,442 is detailed, comprising $7,890 for television and $200,000 for brochures. After a 75% reduction, the corrective advertising award owed to American is $94,360.50. Under 15 U.S.C. 1117, a willful trademark infringer must surrender profits earned during the infringement, decided by the district judge based on the case's equities. The theory of unjust enrichment underpins this accounting for profits. The Lanham Act necessitates only that the infringer acted deliberately, regardless of their belief in legality. Courts may award all profits from the infringement unless the infringer can prove that some profits resulted from their merit rather than the infringement. The Supreme Court mandates that the burden of proving profits unrelated to the infringement lies with the infringer, not the plaintiff. Although the trademark owner may benefit if profits cannot be distinctly attributed to lawful or unlawful use, the law aims to prevent windfalls for infringers. The district court can award a deemed "just" amount based on case specifics. The court concludes that, except for ELECT, the Defendants intentionally infringed on American's FARM BUREAU mark, entitling American to the profits earned by the Alfa Companies during this infringement. Although Alfa's profits were significant, distinguishing between those profits attributable to merit versus infringement is deemed virtually impossible.

Evidence supports that the Alfa Companies profited significantly during the infringing period. Although the court could award all profits to American under the Lanham Act, it finds such an award unjust and instead grants American 20% of the reasonable royalty, amounting to $164,618. This figure is considered a fair return relative to the profits made by the infringers. 

The court has the discretion to triple damages under 15 U.S.C. § 1117(a), contingent on actual harm rather than punitive motives. The total monetary award to American, including reasonable royalty, corrective advertising, and profits, totals $1,082,068.50, with no increase deemed necessary as it would be unjust and punitive.

Regarding attorney fees, American seeks them under the Lanham Act's provision for exceptional cases. The court, finding that the Alfa Companies acted in bad faith by continuing to use the FARM BUREAU mark despite knowing the implications of disaffiliation from American, decides that circumstances justify awarding attorney fees. The defendants disregarded American's rights and failed to adhere to a Settlement Agreement, demonstrating a pattern of trivializing misuse claims while knowingly infringing on the trademark. This conduct is characterized as bad faith and qualifies as exceptional under the statute.

American is not required to pay attorney fees for enforcing its rights to the FARM BUREAU mark against the Defendants. The court has determined a monetary award of $1,082,068.50 under the Lanham Act, which sufficiently compensates American and deters further infringement, negating the need for punitive damages under state law. AFF and the Alfa Companies are jointly and severally liable for this amount, while no damages will be recovered from ELECT.

The court grants injunctive relief under the Lanham Act, emphasizing that such relief is preferred in trademark cases due to the inadequacy of legal remedies for ongoing infringement. The injunction includes several specific orders: AFF and the Alfa Companies must prevent new cross-references with Farm Bureau in telephone directories in Alabama, Mississippi, and Georgia; they must remove existing references within 30 days; they must destroy certain brochures within the same timeframe; ELECT must change its FEC registration to eliminate any reference to Farm Bureau; the Defendants must clarify their historical connection to Farm Bureau; and they must refrain from any representations that could mislead the public regarding their association with Farm Bureau or American. Additionally, the Defendants are required to investigate and eliminate any confusing uses of the FARM BUREAU mark.

Alabama law supports equitable specific performance of contracts when monetary damages are inadequate or impracticable, which applies in this case due to the complexities in valuing control over the mark.

American Farm Bureau Federation is entitled to specific performance of the Settlement Agreement due to difficulties in quantifying damages from misleading directory cross-references in Georgia and Mississippi, as well as advertising costs to rectify confusion from trademark infringement. The court orders that the Contracting Defendants must not display the FARM BUREAU mark and must instruct their affiliates to remove it from public view. Additionally, any county organization that uses the mark must be disaffiliated. The 1986 Settlement Agreement was meant to resolve all disputes regarding the use of the Farm Bureau name in Alabama, and the defendants' unilateral actions violated this agreement and the Lanham Act. As a result, they are liable for damages, specific performance, injunctive relief, and attorney fees. The judgment awarded American $1,082,068.50 in damages, along with reasonable attorney fees and expenses incurred during the litigation. The parties are given deadlines to settle the attorney fees, with specific dates for filings and responses.

Defendants, including Alabama Farmers Federation and its affiliates, are ordered to cease any new publications linking them, their subsidiaries, or related companies to Farm Bureau in telephone directories across Alabama, Mississippi, and Georgia. They must remove existing cross-references from directory assistance within 30 days and destroy specified brochures, retaining only necessary historical copies. The Political Action Committee (ELECT) is required to amend its FEC registration to eliminate references to Farm Bureau. The defendants must also clarify any historical connections to Farm Bureau, ensuring the public understands they are no longer associated with it. They are prohibited from making statements that imply any affiliation with Farm Bureau and must investigate and eliminate any misleading uses of the FARM BUREAU mark. 

Specifically, Alabama Farmers Federation and other named companies must not display the FARM BUREAU mark publicly and must ensure their affiliates comply. Any county organizations maintaining the mark must be disaffiliated. Costs incurred in this matter will be charged to the defendants. Notably, American holds multiple trademark registrations for the FARM BUREAU mark and associated variations. Unlike previous prohibitions on the use of the FARM BUREAU name, the current restrictions during the 1990-1991 moratorium period allow certain exceptions.

The new Alabama state organization is permitted to identify itself as a member of the American Farm Bureau Federation (AFBF). American and its affiliates can provide services and products under the FARM BUREAU mark to this state organization and its members, even during a moratorium. There is no evidence that the Alabama Farm Bureau Federation (AFF) has ever discontinued or threatened to discontinue a county organization's membership due to the use of the FARM BUREAU mark after the December 31, 1989, deadline. The term "commercial impression" relates to audience perception of advertisements. Ken Wallis, General Counsel for the Alfa Companies, acknowledged his awareness of communications between the parties while he also permitted distribution of sales materials featuring the FARM BUREAU mark in several states. A survey indicated that 73% of Alabama residents recognized the Farm Bureau brand due to its insurance services, with a significant number attributing their knowledge to their insurance policies. The court will not evaluate internal, non-public uses of the mark as American's complaints focus solely on public uses. The Settlement Agreement binds the Contracting Defendants and their related companies, including AFF and Alfa Companies, making them jointly liable for any unauthorized use of the FARM BUREAU mark, while also holding AFF liable for any misuse by ELECT. The court notes that consumers associate the mark with quality and rely on the owner’s quality control. An oversight led to ELECT's FEC listing, reflecting AFF's insufficient diligence in monitoring the mark's use. The court finds little value in Dr. Kitchens's survey of Alabama residents, emphasizing that only those who actually encountered the allegedly confusing messages could be confused by them.

Many individuals in Alabama may be unaware of the allegedly misleading applications of the FARM BUREAU mark, resulting in low confusion percentages in surveys conducted among this general population. Conversely, actual customers of Alfa are likely more familiar with these infringing uses, leading the court to assign greater significance to surveys targeting this group. The court utilized the six-factor test from Dieter v. B. H. Industries of Southwest Fla. Inc., which indicates a likelihood of infringement for each usage identified. Additionally, the Eleventh Circuit's ruling in Bonner v. City of Prichard establishes that all decisions from the former Fifth Circuit prior to October 1, 1981, are binding precedent. The estimate of confusion may be underestimated, as it only accounts for five years of infringement despite the defendants' actions spanning over a decade. Furthermore, the Alfa Companies not only gained insurance profits from confused customers due to the misleading FARM BUREAU mark but also accrued investment profits derived from those insurance profits.