BBK Tobacco & Foods LLP, Plaintiff, v. Central Coast Agriculture Incorporated, et al., Defendants, No. CV-19-05216-PHX-MTL (07/19/2022)

Defendant’s motion for summary judgment granted. Def. uses RAW GARDEN for cannabis extracts, plaintiff sells tobacco and rolling paper under the RAW mark.

Comprehensive discussion of admissibility of testimony from various types of experts, including discussion of SQUIRT v EVEREADY surveys.

Comprehensive discussion of Ninth Circuit Sleekcraft factors.

“In the instant case, five factors favor CCA, including the weighty similarity of the marks, strength of the mark, and evidence of actual confusion factors. One factor, the degree of care exercised by consumers, is neutral, while only two factors, the proximity of the parties’ goods and marketing channels used, favor BBK. See Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 634 (9th Cir. 2005) (concluding that “[t]he distribution of the Sleekcraft factors does not raise a material issue of fact regarding likelihood of confusion” where only two factors weighed in plaintiff’s favor); see also M2 Software, 421 F.3d at 1081–83, 1085 (affirming grant of summary judgment when strength of the mark, similarity of the mark, and proximity of the goods factors all favored plaintiff because the others favored defendant). Given the obvious and significant differences between the parties’ marks, the absence of actual confusion, and the low net confusion rates generated by the parties’ surveys, the Court concludes that no reasonable jury could find for BBK on the likelihood of confusion issue. See Cohn, 281 F.3d at 842 (affirming grant of summary judgment where plaintiff’s “evidence fail[ed] to create a genuine issue that confusion is probable, not simply a possibility”); see also Brookfield Commc’ns, 174 F.3d at 1054 (“Where the two marks are entirely dissimilar, there is no likelihood of confusion.”); Collins v. U.S. Dep’t of Veterans Affs., 497 F. Supp. 3d 885, 900 (S.D. Cal. 2020) (“Plaintiffs have failed to demonstrate a triable issue of material fact as to a necessary element of their trademark infringement claims.”).”

Text of decision in BBK v Central Coast Agriculture: D Arizona SJ RAW GARDEN 2_19-cv-05216-MTL_443_PRIMARY DOCUMENT