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.

Decision Go Smile Glo Prelim Survey