Extent To Which The Public Actually Identifies The Plaintiff’s Name With Plaintiff’s Product
In determining whether the public actually identifies a mark with the plaintiff’s product or service, courts look for evidence that the plaintiff has achieved recognition for its name. Conagra,743 F.2d at 1513. “Actual identification is best proved by surveys or other quantifiable proof, and, absent such data, it is very difficult to prove.” Gulf Coast Commercial Corp. v. Gordon River Hotel Assocs., 2006 WL 1382072, * 10 .
Plaintiff offers the opinion of its expert, Kenneth L. Bernhardt, Ph.D., who designed a survey to determine whether the relevant marketplace associates Plaintiff’s name with its services. Plaintiff contends the Survey results showed that 73% of survey respondents made such an association. Dr. Bernhardt concludes that Plaintiff’s mark has acquired a substantial level of awareness and recognition in the marketplace.
Defendants argue that Dr. Bernhardt’s conclusion is flawed because the Survey universe excluded all actual or potential allergy and asthma patients, and instead only surveyed referring physicians, who are not representative of the marketplace as a whole.
i. Defendants’ Motion to Exclude Plaintiff’s Expert Survey and Opinion
Rule 702 of the Federal Rules of Evidence provides:
Here, the Survey that Dr. Bernhardt employed included the following questions:
Instances Of Actual Confusion
As discussed above, Plaintiff contends there have been between twelve and twenty-five instances of actual confusion in less than twelve months between Plaintiff’s and Defendants’ mark and services.
Defendant responds that Plaintiff has not provided any evidence that any confused patient has ever actually sought or received services from Defendant, noting that the majority of incidents of alleged confusion are telephone contacts, and not sales or other transaction, between unidentified third parties who called Defendants’ office by mistake. Defendant further argues that the one instance of alleged actual confusion on which Plaintiff relies involved one of Plaintiff’s patients who arrived at Plaintiff’s office, and, according to Defendants, was clearly not confused between the two practices. Although this patient mistakenly downloaded the wrong forms from Defendants’ website, Defendant contends this is not sufficient to show the patient was actually confused.
The Court already concluded that the record evidence of actual confusion is disputed and that neither party is entitled to a finding on this factor on summary judgment.
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I have been a patient of Dr. Crockers for years now. She knew exactly what treatment I needed for my allergies and since Ive been on this regimen I havent even had a cold, allergy symptoms are gone and I am much happier bc of it.
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Dr. Crocker was great, I recently moved down to GA and searched far and wide to find someone who would listen to all of my concerns and issues since moving down here has caused my allergies
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Where Can I Find Allergy Testing Near Me
Another main function of our Atlanta office is performing allergy testing to discover what is causing a reaction. Skin prick testing is the most common test, with a small needle prick allowing an allergen to enter the body. If a red bump appears, this indicates an allergy to the substance. Alternatively, blood testing or an oral challenge test can find out what is causing your allergy.
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Welcome to the website of The Allergy & Asthma Center. Established in 1986, our practice serves the metro Atlanta area with state-of-the-art allergy and asthma care at three convenient locations: Atlanta, Lawrenceville, and Conyers. We care for the allergy and asthma patient of all ages, from infancy to adulthood. Our philosophy is foremost patient-centered, and we strive to make the individual an integral part of the healing process.
During the course of your or your childs evaluation, board-certified allergists will handle every aspect of your care. Our physicians are board-certified in allergy, asthma, and immunology, and have decades of experience treating the most challenging allergic medical conditions including allergic rhinitis, asthma, insect allergy, food allergy, sinusitis, eczema, hives, and other allergic diseases.
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Strength Of Plaintiff’s Mark
The strength of a mark is evidence of a likelihood of confusion. See Dieter,880 F.2d at 326. As discussed above, the Court is unable to conclude, on the record on summary judgment, that Plaintiff has established its mark has acquired secondary meaning. Absent a finding that Plaintiff’s descriptive mark has acquired secondary meaning, the Court cannot conclude that Plaintiff’s mark is strong enough to contribute to a finding of a likelihood of confusion.
Efforts Made To Promote A Conscious Connection In The Public’s Mind Between The Name And Plaintiff’s Product
Plaintiff points to its media coverage and community outreach events, which include annual Asthma Screenings and Asthma Education classes for the metropolitan Atlanta area on location at various corporations, and its participation in an annual Food Allergy Walk as evidence of its efforts to promote a connection in the public’s mind between its name and its services. Plaintiff argues that its name is now specifically associated with its allergy and asthma services, its medical research, and its physicians. Plaintiff also points to its Pollen Count service and contends that most of the media outlets that report Plaintiff’s Pollen Count actually reference Plaintiff as the source of the data. Plaintiff contends it receives hundreds of calls a year regarding the amount of pollen present on a given day. Finally, Plaintiff employs a consultant to build patient referrals for Plaintiff from existing and new referring doctors’ practices. Plaintiff argues this also creates a conscious connection between Plaintiff’s mark and its services in the public’s mind. Plaintiff contends that from November 2007 through January 2009, its consultant met with approximately 310 medical providers on behalf of Plaintiff and of those providers, only fourteen were unfamiliar with Plaintiff or its services.
For example, The Weather Channel’s website credits Plaintiff with providing the Pollen Count data.
See Gift of Learning Found., Inc. v. TGC, Inc., 329 F.3d 792, 801 .
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Similarity Of The Parties’ Services
Both parties provide medical services for asthma and allergies in the Atlanta area and the parties do not dispute that their services are similar for the purposes of analyzing this factor.
Potentially weighing in favor of a finding of likelihood of confusion are the instances of actual confusion, the similarity of the marks, and the similarity of the parties’ services. Absent a finding that Plaintiff has a strong mark, and in light of the factual disputes regarding the instances of actual confusion, however, the Court cannot make a finding on summary judgment of a likelihood of confusion.
3. Weakness of Plaintiff’s Mark
Defendants rely on Sun Banks of Florida, Inc. v. Sun Federal Sav. and Loan Ass’n, 651 F.2d 311 for this approach. In that case, the court recognized that a finding that a mark is “arbitrary” is not necessarily a finding that it is entitled to absolute protection. Id. at 316. The court then found that extensive third-party use of the word “Sun” was evidence that there would be no likelihood of confusion between two businesses named Sun Banks and Sun Federal. Id. Whether a variation or alteration of a mark would likely cause confusion depends on the “strength of the main part of the mark and the distinctiveness of the additional feature. Where a trademark is itself weak, minor additions may effectively negate any confusing similarity.” Id. .
Plaintiff proffers both its survey evidence and instances of actual confusion.
C. Copyright Infringement
Similarity Of The Marks
Plaintiff contends that its mark, Atlanta Allergy Asthma Clinic, is confusingly similar to Defendant’s name, Allergy and Asthma of Atlanta. Whether two marks are similar is essentially a subjective test. “The similarity of design is determined by considering the overall impression created by the mark as a whole rather than simply comparing individual features of the marks.” John H. Harland Co. v. Clarke Checks, Inc.,711 F.2d 966, 975 .
The Court finds Plaintiff’s mark and Defendants’ name to be sufficiently similar to support a finding of likelihood of confusion.
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Length And Manner Of Use
Plaintiff contends that it has used the mark “Atlanta Allergy Asthma Clinic,” or a variation, since 1972. Although Defendants dispute the length of Plaintiff’s use of its mark, it is undisputed that Plaintiff used its mark since 1996. Plaintiff argues that it used its mark consistently in its advertising, in the media, and at community outreach events in connection with Plaintiff’s services, and that such use has been adequately extensive to establish secondary meaning.
Defendants dispute Plaintiff’s use of its mark from 1972 to 1996. During those years, Plaintiff used the mark “Atlanta Allergy Clinic,” which Plaintiff contends is substantially similar and a legal equivalent. If the new and old forms of a trademark “create the same, continuing commercial impression,” the use of the two marks is “tacked” together. See McCarthy§ 17:26 American Sec. Bank v. American Sec. Trust Co., 571 F.2d 564, 566 . Plaintiff contends that its continuous use of its current mark from 1996 to the present is a sufficient length of use to establish secondary meaning.
Plaintiff contends that Atlanta ENT Allergy and Asthma Associates, P.C., changed its name in response to a cease and desist letter from Plaintiff, and that it no longer does business under an infringing name.
Failed To Follow Objective Criteria
Defendants object that Dr. Bernhardt was not objective in coding the Survey results and contend that he counted the words “Atlanta Allergy” as the equivalent of Plaintiff’s mark. Defendants note that only two out of fifty-one respondents actually said “Atlanta Allergy and Asthma Clinic” in response to the unaided awareness question. When the word Clinic is disregarded, the total rises to eleven out of fifty-one . Defendants object that in order to arrive at the 41% unaided awareness of Plaintiff’s mark, Dr. Bernhardt counted the claimed mark “Atlanta Allergy and Asthma Clinic,” “Atlanta Allergy and Asthma” without the word Clinic, and the words “Atlanta Allergy.”
Defendants object that Dr. Bernhardt has only anecdotal evidence of such usage.
The Court is not persuaded, on the record presented, that Plaintiff’s Survey failed to follow objective criteria or that it should be excluded on that basis. Defendants’ objections go to the weight the Survey deserves, not to its admissibility.
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Nature And Extent Of Advertising And Promotion
Plaintiff contends that from 1996 to the 2006, the year before Defendant began its operations, it spent approximately $1.4 million on the advertising and promotion of its mark.
Defendants quibble that certain of this expenditure may not have been related to advertising. The disputed amount appears to be less than $5,000.
“t is not the amount of money spent on advertising that is important, but the results achieved with the money spent.” Bank of Texas v. Commerce Southwest, Inc.,741 F.2d 785, 788 . Standing alone, a substantial advertising expenditure is not enough where it does not result in the public’s identification of the mark with plaintiff’s products or services. The Court does, however, consider Plaintiff’s expenditure in connection with the other factors for establishing secondary meaning.
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The plasma DNA was analysed using a sequencing assay developed for the purpose, report researchers led by Bert Vogelstein of the Johns Hopkins Medical Institutions. from the Georgia Institute of Technology, Atlanta, made their.
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This story is so sad, and what makes it worse is that it was preventable. The Centers for Disease Control has put out an alert: in Minnesota in 2008, there were five confirmed cases of Haemophilus influenzae type b among children.
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About Atlanta ENT, Sinus & Allergy Associates, P.C.
Atlanta ENT, Sinus & Allergy Associates, P.C. offers the highest-quality medical and surgical care for conditions affecting the ears, nose, throat, and breathing passageways. Board-certified otolaryngologist Ramie A. Tritt, MD, and Board-certified allergists, Thomas Chacko, MD, and Lawrence P. McKean, are ENT, allergy, asthma, and immunology specialists who provide on-site evaluation, diagnostic testing, and customized treatment services at their offices in the Sandy Springs and Executive Park neighborhoods of Atlanta, Georgia.
In addition to nonsurgical treatment solutions, Atlanta ENT, Sinus & Allergy Associates, P.C. also performs minimally invasive surgeries, like balloon sinuplasty, VivAer®, and ClariFix®, in-office for patient convenience.
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For help managing sinusitis, allergies, asthma, or treating an ear infection, rely on the expertise of the team at Atlanta ENT, Sinus & Allergy Associates, P.C. Call the office nearest you or request a consultation online today.
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Are You Experiencing Food Allergies
Food allergies are a consistent problem for many of the children and adults who come to our Atlanta center. A food allergy could start with a minor reaction to consuming a particular food. However, it doesnt mean that the allergic reactions will remain minor or stable. An individual may grow out of their allergy or the allergic reactions could become more severe.
At Chacko Allergy, Asthma and Sinus Center in Atlanta, we treat difficult food allergies with care and attention. Not only can we provide successful treatment plans, but we will also assist with advice and best practices to stay safe. Unfortunately, ingredients like milk, eggs, tree nuts and peanuts are commonly found in many products. While checking the ingredient labels can be a burden, it will give you the important information regarding the food allergy.
Fighting A Growing Problem
More than 50 million Americans suffer from allergies. Another 26 million have asthma. And the number of people affected by these conditions appears to be increasing.
The Grady Asthma & Allergy Center offers comprehensive testing services and state-of-the-art treatment for asthma.
Our physicians are board-certified allergists. Collaborating with nurses and other team members, they help thousands of patients identify their allergies and treat their asthma. We provide the best asthma treatment available in Georgia, the diagnostic testing to properly identify your sensitivities, and the care to let you resume your daily routine.
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