Court: Court of Appeals for the Ninth Circuit; September 12, 2005; Federal Appellate Court
Plaintiff M2 Software appeals the summary judgment granted to defendant M2 Communications, which ruled that there was no likelihood of confusion between the Christian music products of M2 Communications and the music products and services of M2 Software under trademark and unfair competition laws. The district court also dismissed defendants Gaylord Entertainment and Jeff Moseley due to lack of personal jurisdiction.
The review of the summary judgment is conducted de novo, considering the eight Sleekcraft factors to assess confusion likelihood: (1) strength of the mark, (2) proximity of the goods, (3) similarity of the marks, (4) evidence of actual confusion, (5) marketing channels, (6) type of goods and purchaser's degree of care, (7) defendant’s intent, and (8) likelihood of product line expansion.
The first three factors favor M2 Software, noting its mark is inherently strong and that the proximity of goods exists, albeit slightly, due to differing music genres. However, the remaining factors favor M2 Communications, indicating that their products target distinct market segments with minimal overlap. M2 Communications primarily markets in Christian circles, reducing the likelihood of confusion among consumers, who are considered sophisticated purchasers unlikely to confuse the two brands. M2 Software failed to present evidence of actual confusion or intentions to expand into each other's markets, and M2 Communications believed it did not infringe M2 Software’s rights.
To succeed, M2 Software needed to demonstrate that confusion was probable, not just possible, which the court found it could not. Any district court errors regarding marks' strength or goods' proximity were deemed harmless. The concept of reverse confusion, where consumers believe they are dealing with the junior mark holder, was also addressed, with the same Sleekcraft factors applied.
The district court concluded there was no likelihood of reverse confusion. The order dismissing parties for lack of personal jurisdiction is reviewed de novo, meaning the appeal court assesses the case without relying on the lower court's conclusions. In cases where the dismissal occurs without an evidentiary hearing, the plaintiff must only establish a prima facie case of jurisdictional facts. Jurisdiction over a defendant may be established if the defendant's contacts could support such jurisdiction. For Word Entertainment to be considered an alter ego or agent of its parent company, Gaylord Entertainment, it must meet specific criteria. Gaylord’s acquisition and subsequent sale of Word as a division does not imply sufficient control to treat Word as Gaylord’s instrumentality. The fact that Gaylord’s executive is also an officer of Word does not satisfy the alter ego or agency standard. Additionally, being listed as a technical contact for a website does not provide adequate grounds for general jurisdiction. M2 Software did not provide sufficient evidence for general or specific jurisdiction over Gaylord or Jeff Moseley. The 'effects' test requires intentional acts aimed at the forum state, but mere ownership of stock does not qualify as such an act. Moseley is protected by the fiduciary shield doctrine, which prevents jurisdiction based solely on corporate association. M2 Software’s request for attorneys’ fees was denied, and the decision is affirmed, with publication restrictions per Ninth Circuit Rule 36-3.
