Motion for preliminary injunction. Plaintiff uses GO SMILE for teeth whitener systems, defendant uses GLO for the same. Products are or will be sold side-by-side in certain locations. Plaintiff provided no survey (Court didn’t use the words ‘negative inference’ but noted that plaintiff had had 16 days in which to do a survey). Defendant proffered both an Eveready (unaided awareness) survey and a sequential array survey. The Eveready survey showed zero confusion. The array also showed net zero (38% for the control minus 37.5% for the test).
The Court, relying on visual, phonetic and connotative differences, held that the marks were dissimilar. Crediting defendant’s survey, Court denied the motion.