E. & J. Gallo Winery v. Consorzio Del Gallo Nero, 782 F. Supp. 457 (1991) p.440

SUBJECT

likelihood of confusion

FACTS

Gallo winery v. a company in Italy that started selling Chianti wine under name Gallo Nero.

ISSUE

Whether there is likelihood of confusion between Gallo and Gallo Nero.

HOLDING

Summary judgment issued for Gallo Wine.

RATIONAL

Court worked through the Polaroid factors:
1. strength of mark - both are strong on their own
2. similarity of marks used - same word, same product, similiar market
3. similarity of goods - very similiar, both sell wine
4. similarity of marketing channels used - use same marketers
5. degree of care exercised by purchasers - wine an impulse purchase; lack of consumer sophistication significantly enhances the likelihood of confusion between two products
6. evidence of actual confusion - no evidence since no distribution yet; when you have a survey make sure it is done as the product are marketed in marketplace - survey should be done as in the marketplace
7. defendant's intent - some presumption of intent since Gallo wine is so big

NOTES

If junior user aware of senior user's mark then strong inference that the only reason you selected the mark was to create confusions. Courts say that when you select a mark you have a duty to try to avoid confusion.

Created on: Thursday, February 24, 2000 at 18:43:59 (PST)