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D. There Is No Likelihood That Any Consumer Would Be Confused About Whether Taubman Is the Source of Mishkoff's Websites.

Taubman's brief attempts to justify the injunction against the "shops" site by performing the factor by factor analysis that this Court requires in trademark cases to establish a likelihood of confusion, but which the district court failed to perform. With respect to most of the factors, however, Taubman does not respond to the arguments in Mishkoff's opening brief, at 45-51. This section of the brief addresses only those factors on which Taubman advances arguments that were not anticipated there.

[Note: Although the district court theorized that some Internet users might be confused about whether the "sucks" page was sponsored by Taubman, because one line on the "sucks" home page expressed Mishkoff's continued admiration for the mall, REN 48 at 3 n1, JA197, Taubman does not defend this reasoning or otherwise argue that there is any likelihood of confusion about the source of the "sucks" page.]

Relatedness of Services

The only aspect of this factor that was not addressed in Mishkoff opening brief is Taubman's argument, at 32, that the record does not support Mishkoff's characterization of his "shops" site as a fan site because it is not a testimonial about how the mall turned out and includes no memorabilia. This argument does not bear on the relatedness of services. In addition, it ignores the fact that Taubman filed this suit as soon as the mall opened, and a preliminary injunction was granted two months later. Even assuming that a fan site needs to have such contents, Mishkoff did not have the time to add memorabilia or personal experiences to the site before he was forced to remove it from the Internet. And, Taubman's contention that the "shops" site could not be a fan site because it is confusingly similar to Taubman's own website, TaubBrf. 32, 37, is belied by a side by side comparison of the "shops" site, which appears on the CD in the record as REN53, and www.shopwillowbend.com, which can be seen online and is obviously very different. (By contrast, several of the pages attached to the motion for a preliminary injunction, JA39-44, were not part of Mishkoff's website, as the URL's at the bottom left corner of each page reveal.)

[Note: Taubman's argument about the relatedness of services is inconsistent with its argument that Mishkoff's site is commercial because it promotes Mishkoff's services as an Internet consultant. If those were the services that Mishkoff was using the trademark to promote, they are completely unrelated to the services for which Taubman has obtained the "The Shops at Willow Bend" trademark.]

Likely Degree of Purchaser Care

Taubman argues that web visitors to a site about its shopping mall are looking for "deals" or information on opening dates and hours and are unlikely to exercise any "purchaser care." Taubman has no evidence on this point, and its citation is to a case about packages of tea, not an upscale shopping mall. Nor does Taubman show that, in seeking such information, Internet users even care about whether they get it from the owner of the mall or from an independent third party. And yet, as the opening brief explained, this Court has held that there is no liability for infringement unless the use of the trademark has some tendency to deceive "prospective purchasers who care about source." MishBrf. 31, citing cases. Because Taubman has not rebutted this point, this concession about the identity of the purchasers and their interest in the website condemns its claim against Mishkoff.

Taubman's other argument, that the Court should assume that Internet users are stupid and that they will not notice small differences in domain names, was rebutted above at pages 5-6.

Mishkoff's Intent in Selecting the Mark

To the extent that Taubman predicates its argument about Mishkoff's intent in using the name "The Shops at Willow Bend" on his website and in its domain name on the allegation that he sought to "make a quick $1000" by selling the name to Taubman, or by diverting traffic to his home page, those claims are rebutted above, at pages 18-19.

Mishkoff's Prominent Disclaimer

Under this factor, Taubman cites PACCAR v. Telescan, supra, for the proposition that web surfers are easily confused and that disclaimers do not eliminate the likelihood of confusion by an otherwise confusing domain name. In PACCAR, however, the disclaimer was provided in tiny type, at the very bottom of a lengthy page where it could easily have been missed by the average internet viewer. (The home pages are set forth in an appendix to the opinion, 115 FSupp2d at 782, 785 et seq.) Here, by contrast, the disclaimer is set forth in a brightly colored box near the top of the home page, where no visitor to the page could possibly miss it, and it is accompanied by a hyperlink to the official site for The Shops at Willow Bend so that any viewer who prefers that site can go directly there. (See addendum to this brief). Indeed, the disclaimer in PACCAR was even more obscure than the link to Mishkoff's home page, which Taubman has repeatedly proclaims to be an "advertisement" for Mishkoff's services that has increased traffic to Mishkoff's home page and that is Mishkoff's real reason for creating the page. If the WebFeats link is prominent enough to be considered in the case, so is the disclaimer.

* * *

In the end, this is a case where "all but the most obtuse consumer," Abercrombie & Fitch v. American Eagle Outfitters, 280 F3d 619, 648 (CA6 2002), would recognize that Mishkoff's websites are not sponsored by Taubman. This conclusion is equally true of the "shops" site, with respect to which Taubman has, at least, attempted to argue based on the eight factors, as of the "sucks" site, with respect to which Taubman makes no argument under the eight factors. Because there is no likelihood of confusion, the preliminary injunctions should be reversed.

Next: There Is No Personal Jurisdiction

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