Thursday, July 29, 2010

On remand, CRISTAL champagne maker seals victory against CRISTALINO sparkling wine

Cristal Champagne

In 2006, Champagne Louis Roederer, the company which makes CRISTAL CHAMPAGNE, sued J. Garcia Carrion, S.A. (“Carrion”), maker of a sparkling wine sold under the mark CRISTALINO, for trademark infringement. See Champagne Louis Roederer v. J. Garcia Carrion, S.A., Case No 06-cv-00213 (D. Minn). The lower court originally barred Roederer from pursuing its trademark infringement claims on the basis of laches; however, the Eighth Circuit reversed that decision and remanded the case for further proceedings. See Champagne Louis Roederer v. J. Garcia Carrion, S.A., et al., No. 08-2907 (8th Cir. June 24, 2009) (previous blog post here).

Cristalino Cava

On remand, a trial was held in February 2010. On July 27, 2010, the U.S. District Court for the District of Minnesota filed under seal Findings of Fact and Conclusions of Law (possibly unsealed at a later date) and based on such findings and conclusions, issued a permanent injunction against Carrion which prohibited Carrion from using the CRISTALINO mark in connection with the sale of sparkling wine subject to several explicit exceptions. See Court’s order here.

First, Carrion can use CRISTALINO but only as part of the phrase “JAUME SERRA CRISTALINO” and must include a prominent disclaimer stating “JAUME SERRA CRISTALINO is not affiliated with, sponsored by, approved by, endorsed by, or in any way connected to Louis Roederer’s CRISTAL® champagne or Louis Roederer.”

Second, the font used by Carrion for the phrase “JAUME SERRA CRISTALINO” must be dissimilar to the Roman serif font used for the word “CRISTAL” by Roederer and must be entirely the same font type and size with JAUME SERRA displayed in close proximity to CRISTALINO.

Third, when Carrion uses “JAUME SERRA CRISTALINO” on bottles of cava, the phrase is only to appear on labels having a background color “other than gold if the cava is a brut, dry, extra-dry, or semi-dry and other than a pink-hued copper if the cava is a rosé.” [ed—Hmmm, that's pretty specific.]

Finally, the court determined that Carrion can sell its existing inventory of CRISTALINO cava which are already labeled, but otherwise, must immediately destroy all labels, signs, prints, packages, wrappers, receptacles, and advertisements in its possession bearing the mark CRISTALINO.

No indication of any award for damages or attorneys fees.

News coverage on the decision from Businessweek.

Thursday, July 22, 2010

Court of Appeals Reverses Lower Court’s Constructive Trust on BRATZ trademarks

Various news reports (Reuters, Bloomberg, USA Today, LA Times) reported on the decision by the Ninth Circuit Court of Appeal reversing a district court’s decision to enjoin MGA Entertainment, Inc. (“MGA”) from selling its popular BRATZ line of dolls. See MGA Entertainment Inc et al Mattel Inc, Nos. 09-55673 and 09-55812 (9th Cir. July 22, 2010). The district court’s injunctive relief was entered after a jury found that Mattel, Inc. (“Mattel”) was the rightful owner of the BRATZ dolls because the doll idea and name was created by a former Mattel employee and awarded Mattel millions of dollars in damages (this latest decision states that $10 million was awarded although most published reports at the time of the original jury decision was $100 million – anyone explain the discrepancy?).

As part of the district court's injunctive relief, the court imposed a constructive trust over MGA’s entire Bratz trademark portfolio, which essentially transferred MGA’s entire BRATZ trademark portfolio to Mattel. Under the rationale that “[t]he beneficiary of the constructive trust is entitled to enhancement in value of the trust property,” the lower court concluded that, because the two marks BRATZ and JADE had been transferred improperly, Mattel was entitled to the enhancement of the value of such property and ordered a constructive trust over MGA’s entire Bratz trademark portfolio.

The Court of Appeals, however, reversed this decision on the ground that the court’s overly broad constructive trust allowed Mattel to acquire “the fruit of MGA’s hard work, and not just the appreciation in value of the ideas Mattel claims it owns.” The court noted that the general rule of making the beneficiary of the constructive trust entitled to the enhancement in value of the trust property “has the greatest force where the appreciation of the property is due to external factors rather than the efforts of the wrongful acquisitor.” But when the value of the trust property increases based on the efforts of the defendant, “a constructive trust that passes on the profit of the defendant’s labor to the plaintiff usually goes too far.”

The court stated the following:

Even assuming that MGA took some ideas wrongfully, it added tremendous value by turning the ideas into products and, eventually, a popular and highly profitable brand. The value added by MGA’s hard work and creativity dwarfs the value of the original ideas Bryant brought with him, even recognizing the significance of those ideas.

In this case, while the original Mattel employee’s idea of a line of dolls, which included the names BRATZ and JADE, may have been improperly taken by MGA, MGA went on to create multiple generations of Bratz dolls (from Cloe, Yasmin, Sasha and Jade to Ciara, Dana, Diona, Felicia, and Fianna to variations on the original four dolls such as Bratz Flower Girlz Cloe and Bratz on Ice Doll Yasmin) as well as Bratz doll accessories, video games, and a move – efforts which “significantly raised the profile of the Bratz brand and increased the value of the Bratz trademarks.”

The Court, in vacating the lower court’s constructive trust, found the court’s actions of transferring an entire $1 billion brand over to Mattel – value that was created mostly from MGA’s own efforts and not reflective of the value of the two particular names, BRATZ and JADE, that were found to have been taken improperly by MGA – was an abuse of discretion:

It is not equitable to transfer this billion dollar brand— the value of which is overwhelmingly the result of MGA’s legitimate efforts—because it may have started with two misappropriated names. The district court’s imposition of a constructive trust forcing MGA to hand over its sweat equity was an abuse of discretion and must be vacated.

For copyright fans, the decision also includes an interesting discussion regarding the fine line between copyrightable expression and unprotectable ideas (“Mattel can’t claim a monopoly over fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing—these are all unprotectable ideas.”).

Tuesday, July 20, 2010

Ozzy Osbourne and Tony Iommi Settle Dispute Over BLACK SABBATH trademark

Multiple sources (,, Toronto Sun) reported on the joint statement issued by Ozzy Osbourne and Black Sabbath band partner Anthony Iommi announcing that the two had reached a settlement of the ongoing trademark litigation between the two over the ownership of the BLACK SABBATH mark (see John Osbourne (p/k/a Ozzy Osbourne) v. Anthony Iommi, Case No. 09-cv-04947 (S.D.N.Y. Filed May 26, 2009) (previously blog posts on the dispute here and here):

Ozzy Osbourne and Tony Iommi of the legendary heavy metal band BLACK SABBATH have amicably resolved their problems over the ownership of the BLACK SABBATH name and court proceedings in New York have been discontinued. Both parties are glad to put this behind them and to cooperate together for the future and would like it to be known that the issue was never personal, it was always business.

According to the reports, Ozzy became interested in resolving the dispute after the death of their mutual friend Ronnie James Dio back in May. As usual, the terms of the settlement have not been disclosed.

Friday, July 16, 2010

Owner of Petronas Twin Towers Files In Rem Cybersquatting Action Against PetronasTowers.Net

Petroliam Nasional Berhad (“Petronas”), the owner of the Petronas Twin Towers in Kuala Lumpur, Malaysia, filed an in rem cybersquatting lawsuit in the U.S. District Court for the Northern District of California against the domain name See Petroliam Nasional Berhad v., Case No. 10-cv-03052 (N.D. Cal. July 12, 2010). Complaint here (via

The Petronas Twin Towers in Kuala Lumpur, Malaysia

Petronas is wholly-owned by the Government of Malayasia and was established to develop Malaysia’s petroleum resources. With all of the money it brought in as a successful worldwide oil and gas company, in 1996, Petronas built the Petronas Twin Towers, the tallest buildings in the world until 2004 when Taipei 101 was completed (and both of which have since been overshadowed by the Burj Khalifa in Dubai). The towers still hold the title of largest free standing towers in the world. (Of course, how many of you remember the Petronas Towers more for their featured prominence in the plot to the Sean Connery-Catherine Zeta Jones heist film Entrapment?)

Petronas promotes its business on the website and also owns the mirror domain names,, and The official Petronas website promoting the Petronas Twin Towers is And Petronas also holds a trademark registration for the design mark PETRONAS in connection with, among other goods, chemicals and oil.

At issue in the complaint is the domain name, which was registered in May 2003 (currently registered with GoDaddy) and, as a .NET domain name, the registry is with Verisign. WHOIS records reflect the owner of the domain name as an individual in London. The domain name currently hosts an adult website offering live adult videocam shows, adult photos, etc. -- a different type of “twin towers” for certain (but I can’t say that I saw anyone named Petronas).

Petronas requests the court issue an order to GoDaddy to transfer the domain name immediate to Petronas or alternatively, “forever cancelling the domain name” (an unusual alternative request for relief if it’s meant to be just to GoDaddy given that the order would be to a single registrar and would not impact any other registrars who, at the request of a registrant, might register again – perhaps such an order would be better directed to the registry, Verisign. Anybody out there ever obtain such an order?).

Thursday, July 15, 2010

Vienna Beef Sues Chicago Restaurant for Counterfeiting and False Advertising

As much as I enjoy reading trademark infringement lawsuit complaints, even I will concede that they all pretty much read the same after a while – multiple paragraphs of factual allegations about trademark rights and infringing activities followed by paragraphs of causes of action (leave it to lawyers to take 20 pages to state what could probably be set forth in 5 pages and still be considered a sufficient “short and plain statement of a claim” for purposes of satisfying Rule 8). The lawsuit filed by Vienna Beef, Ltd. (“Vienna Beef”) against a Chicago restaurant, and its owner, Ferzi Emini, is no different. See Vienna Beef, Ltd. v. Freddy's Fast Food, Inc. et al, Case. No. 10-cv-04313 (N.D. Ill. July 12, 2010). (Complaint here).

Vienna Beef is the owner of the registered trademark for VIENNA BEEF for various items including frankfurters, wieners, and polish sausage. According to the complaint, the Defendants’ restaurant, Freddy's Fast Food (located at 5364 W. Gale Street, Chicago, Illinois 60630) serves hot dogs and polish sausages. A purported picture of the exterior of the Defendants’ Restaurant showing a large sign displaying the mark VIENNA BEEF was included as an exhibit to the complaint.

A Vienna Beef representative supposedly went to Defendants’ restaurant and observed that the restaurant was selling hot dogs and polish made by some other company (an unnamed Vienna Beef competitor).

Which leads to the one factual allegation in this complaint that stands out among the other routine allegations (and makes this complaint a little unusual). According to the complaint, when the Vienna Beef representative notified Mr. Emini that his use of the VIENNA BEEF mark was not proper because he was not selling Vienna Beef products and that he must either begin selling genuine Vienna Beef products or else take down the sign, Mr. Emni “wielded a weapon, chased Vienna Beef’s representative from Defendants’ Restaurant, and threatened Vienna Beef’s representative with death or bodily harm.” [ed.—hmm, I wonder what kind of weapon? A deadly Kielbasa perhaps?] Naturally preferring to avoid any further confrontation, Vienna Beef followed-up with a formal cease and desist letter the next day [ed.—no police report?]. Defendants apparently refused to comply, promptly Vienna Beef to file the instant action.

Vienna Beef maintains that Defendants, by promoting VIENNA BEEF and then selling hot dogs and polish sausages that are not genuine Vienna Beef products, are deceiving customers into believing that they are purchasing genuine VIENNA BEEF branded hot dogs and polish sausages, when, in fact, such customers are purchasing some other company’s brand of hot dogs and polish sausages.

Wednesday, July 14, 2010

Ashley Madison Files Trademark Infringement Lawsuit in Canada Against Gripe Sites

Avid Dating Life, Inc., the company behind the extramarital affair dating website, has filed suit in a Canadian court against Dennis Bradshaw and Lena Karachun – the purported owners of the gripe websites and (Complaint here; Courthousenews coverage here).

I don’t know how Canadian courts handle this kind of case up north, but down here, we would call this a pretty strong example of a) non-commercial, fair use of a party’s trademark and b) using allegations of trademark infringement in a lawsuit to quash the lawful exercise of free speech.

Of course, is it really no surprise that a company whose entire business model is established around encouraging extra-marital affairs would resort to a such a questionable course of action in order to obtain possession of some gripe website domain names (and removing some criticism of its services at the same time).

For more information about the trademark infringement implications of gripe sites, I recommend the following online resources:

Tuesday, July 13, 2010

Ninth Circuit Gives Victory to Pro Se Defendants Fighting Against Toyota

The Ninth Circuit Court of Appeals reversed a lower court decision issuing an injunction against two individual defendants that were sued by Toyota for trademark infringement over their ownership and use of two domain names that contained the trademark LEXUS. See Toyota Motor Sales, U.S.A., Inc. v. Tabari, Appeal No. 07-55344 (9th Cir. July 8, 2010). News reports on the decision here and here.

Justice Alex Kozinski – fresh off his recent controversial trademark dilution decision in Visa Int'l Serv. Ass'n v. Jsl Corp., 2010 U.S. App. LEXIS 13380 (9th Cir. June 28, 2010) – issues another trademark related decision that has all of the hallmarks of a Kozinski opinion (a trademark Kozinski opinion). This time, the decision addresses the nominative fair use doctrine with respect to domain names.

A lower district court enjoined the defendants, Farzad and Lisa Tabari, from using the domain names and on the basis of infringement of Toyota’s LEXUS trademark. The Ninth Circuit reversed and remanded, finding the injunction overbroad.

The Tabaris worked as auto brokers – “the personal shoppers of the automotive world” – and offered their services through the aforementioned websites. Lexus objected to their use of the term “lexus” in the domain names, sued and after a bench trial, the district court found infringement (on the basis of liklihood of confusion) and enjoined the Tabaris from using their domain names. The Tabaris appealed.

The Court of Appeals knocked out the lower court’s application of the eight-factor test for likelihood of confusion articulated in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979), by noting that “the Sleek-craft analysis doesn't apply where a defendant uses the mark to refer to the trademarked good itself. See Playboy Enters., Inc. v. Welles, 279 F.3d 796, 801 (9th Cir. 2002); New Kids on the Block v. News Am. Publ'g, Inc., 971 F.2d 302, 308 (9th Cir. 1992).” In this case, the Tabaris were using the term Lexus to describe their business of brokering Lexus automobiles. “We've long held that such use of the trademark is a fair use, namely nominative fair use. And fair use is, by definition, not infringement.”

The Court then turned its attention to the scope of the district court’s injunction. “A trademark injunction, particularly one involving nominative fair use, can raise serious First Amendment concerns because it can interfere with truthful communication between buyers and sellers in the marketplace. . . . To uphold the broad injunction entered in this case, we would have to be convinced that consumers are likely to believe a site is sponsored or endorsed by a trademark holder whenever the domain name contains the string of letters that make up the trademark.”

In finding the injunction overbroad, the Court stated:

The injunction here is plainly overbroad--as even Toyota's counsel grudgingly conceded at oral argument-- because it prohibits domain names that on their face dispel any confusion as to sponsorship or endorsement. The Tabaris are prohibited from doing business at sites like and, although a reasonable consumer wouldn't believe Toyota sponsors the websites using those domains. Prohibition of such truthful and non-misleading speech does not advance the Lanham Act's purpose of protecting consumers and preventing unfair competition; in fact, it undermines that rationale by frustrating honest communication between the Tabaris and their customers.

The Court went on to note that the district court’s injunction, even if modified to exclude domain names that expressly disclaim sponsorship or endorsement, would still be too broad because it would prevent the Tabaris from doing business at, “even though that's the most straightforward, obvious and truthful way to describe their business. The nominative fair use doctrine allows such truthful use of a mark, even if the speaker fails to expressly disavow association with the trademark holder, so long as it's unlikely to cause confusion as to sponsorship or endorsement. . . . Speakers are under no obligation to provide a disclaimer as a condition for engaging in truthful, non-misleading speech.”

The Court then discusses a very important point (and does so in a truly articulate manner that one expects from Kozinski -- so well that I've chosen to simply quote most of it rather than simply paraphrase the discussion and not do his words justice) about trademarks appearing in domain names and the sophistication of modern internet users – a point with which I would imagine many trademark owners are likely to disagree:

When a domain name consists only of the trademark followed by .com, or some other suffix like .org or .net, it will typically suggest sponsorship or endorsement by the trademark holder. Cf. Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1327 (9th Cir. 1998). This is because “[a] customer who is unsure about a company's domain name will often guess that the domain name is also the company's name.” Id. (quoting Cardservice Int'l v. McGee, 950 F. Supp. 737, 741 (E.D. Va. 1997)) (internal quotation marks omitted); see also Brookfield Commc'ns, Inc. v. W. Coast Entm't Corp., 174 F.3d 1036, 1045 (9th Cir. 1999). . . .
But the case where the URL consists of nothing but a trademark followed by a suffix like .com or .org is a special one indeed. See Brookfield, 174 F.3d at 1057. The importance ascribed to in fact suggests that far less confusion will result when a domain making nominative use of a trademark includes characters in addition to those making up the mark. Cf. Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1146-47 (9th Cir. 2002). Because the official Lexus site is almost certain to be found at (as, in fact, it is), it's far less likely to be found at other sites containing the word Lexus. On the other hand, a number of sites make nominative use of trademarks in their domains but are not sponsored or endorsed by the trademark holder: You can preen about your Mercedes at and, read the latest about your double-skim-no-whip latte at and find out what goodies the world's greatest electronics store has on sale this week at Consumers who use the internet for shopping are generally quite sophisticated about such matters and won't be fooled into thinking that the prestigious German car manufacturer sells boots at, or homes at, or that is sponsored or endorsed by the TV cable company just because the string of letters making up its trademark appears in the domain.
When people go shopping online, they don't start out by typing random URLs containing trademarked words hoping to get a lucky hit. They may start out by typing, but then they'll rely on a search engine or word of mouth. If word of mouth, confusion is unlikely because the consumer will usually be aware of who runs the site before typing in the URL. And, if the site is located through a search engine, the consumer will click on the link for a likely-relevant site without paying much attention to the URL. Use of a trademark in the site's domain name isn't materially different from use in its text or metatags in this context; a search engine can find a trademark in a site regardless of where exactly it appears. In Welles, we upheld a claim that use of a mark in a site's metatags constituted nominative fair use; we reasoned that “[s]earchers would have a much more difficult time locating relevant websites” if the law outlawed such truthful, non-misleading use of a mark. 279 F.3d at 804. The same logic applies to nominative use of a mark in a domain name.

(footnotes omitted) (bold underline emphasis added).

The court recognized that there would be exceptions to nominative fair use for those cases where the domain name containing a mark suggested sponsorship or endorsement by the trademark holder (e.g.,,,,, However, the district court’s injunction was not limited to this type of usage.

The Court again articulates a modern, Internet-saavy take on the use of trademarks in domain names:

When a domain name making nominative use of a mark does not actively suggest sponsorship or endorsement, the worst that can happen is that some consumers may arrive at the site uncertain as to what they will find. But in the age of FIOS, cable modems, DSL and T1 lines, reasonable, prudent and experienced internet consumers are accustomed to such exploration by trial and error. Cf. Interstellar Starship, 304 F.3d at 946. They skip from site to site, ready to hit the back button whenever they're not satisfied with a site's contents. They fully expect to find some sites that aren't what they imagine based on a glance at the domain name or search engine summary. Outside the special case of, or domains that actively claim affiliation with the trademark holder, consumers don't form any firm expectations about the sponsorship of a website until they've seen the landing page --if then. This is sensible agnosticism, not consumer confusion. See Jennifer E. Rothman, Initial Interest Confusion: Standing at the Crossroads of Trademark Law, 27 Cardozo L. Rev. 105, 122-24, 140, 158 (2005). So long as the site as a whole does not suggest sponsorship or endorsement by the trademark holder, such momentary uncertainty does not preclude a finding of nominative fair use.

(bold underline emphasis added).

In response to Toyota’s arguments regarding its entitlement to the exclusive use of the string “lexus” in any internet domain names because of its hundreds of millions of dollars spent every year investing in the name, the Court notes that such wholesale prohibition of the nominative use of Lexus in domain names “would be unfair to merchants seeking to communicate the nature of the service or product offered at their sites. And it would be unfair to consumers, who would be deprived of an increasingly important means of receiving such information. As noted, this would have serious First Amendment implications. The only winners would be companies like Toyota, which would acquire greater control over the markets for goods and services related to their trademarked brands, to the detriment of competition and consumers. The nominative fair use doctrine is designed to prevent this type of abuse of the rights granted by the Lanham Act.”

After setting forth the general principles regarding nominative fair use in domain names, the court then specifically directed its attention to applying the doctrine to the two domain names at issue in the case. The court found the Tabaris' use of the mark “necessary” given the near impossibility of informing consumers that they are Lexus car brokers without mentioning Lexus. And the fact that the Tabaris sold other cars was irrelevant given their right to focus on one particular car brand: “The Tabaris are entitled to decide what automotive brands to emphasize in their business, and the district court found that the Tabaris do in fact specialize in Lexus vehicles. Potential customers would naturally be interested in that fact, and it was entirely appropriate for the Tabaris to use the Lexus mark to let them know it.”

The Tabaris had also used the stylized Lexus mark and “Lexus L” logo on their website – something that Toyota argued was more than necessary and suggested sponsorship or endorsement by Toyota. The Court agreed, but also noted that the site had changed by the time of trial (removing the stylized logos and adding a disclaimer). Toyota claimed that the revised site with its disclaimer “came too late to protect against confusion caused by their domain names, as such confusion would occur before consumers saw the site or the disclaimer.” The Court disagreed since the domain names by themselves did not contain words suggesting that it was like “authorized” or “official.” “Reasonable consumers would arrive at the Tabaris' site agnostic as to what they would find. Once there, they would immediately see the disclaimer and would promptly be disabused of any notion that the Tabaris' website is sponsored by Toyota. Because there was no risk of confusion as to sponsorship or endorsement, the Tabaris' use of the Lexus mark was fair.”

The Court reversed and remanded – sending the case back to the district court to determine if an injunction was even necessary given that the Tabaris had stopped all infringing activities by the time of trial and where there may be no risk that any infringing conduct would recur. And to the extent an injunction would be necessary in the case of the Tabaris, then the proper injunction would be one that does not entirely prohibit use of the domain names at issue in this case and which allows the use of the Lexus mark in the two domain names owned by the Tabaris.

The Court’s remand included the following guiding principle for the district court: “The important principle to bear in mind on remand is that a trademark injunction should be tailored to prevent ongoing violations, not punish past conduct. Speakers do not lose the right to engage in permissible speech simply because they may have infringed a trademark in the past.” The Court also reminded the district court that the case should be analyzed solely “under the rubric of nominative fair use” – thus putting the burden on Toyota to establish that the Tabaris' use of the Lexus mark was not nominative fair use given that the Tabaris used the mark to refer to the trademarked goods. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

What makes the Ninth Circuit's decision all the more interesting is the fact that the trial and appeal were pursued pro se by the two individual defendants, Farzad Tabari and Lisa Tabari. Apparently, they had a lawyer, but when legal fees got to be too much [ed.—the unfortunate price of justice], they decided to go at it by themselves. According to one of the articles, Lisa Tabari was quoted as saying “everyone in the court system, they were so wonderful to us.” And they have shown that with enough hard work and dedication, the little guy can pursue justice in our legal system and be victorious against the big corporation and its army of overpriced lawyers without hiring a lawyer and incurring thousands of dollars in legal fees (although, as a lawyer, I certainly wouldn't advise such a course of action -- after all, they may not have had to shell out dollars to lawyers, but they certainly did pay a cost if you put a monetary value on the amount of time the Tabaris likely spent on the case, including this appeal, along with all of the other things they could have done with their time, but instead had to be devoted to this case).

On a related note, the Court couldn’t help but take one final jab at both the district court and Toyota’s lawyers. In the opinion’s concluding paragraph, the Court stated: “Many of the district court's errors seem to be the result of unevenly-matched lawyering, as Toyota appears to have taken advantage of the fact that the Tabaris appeared pro se . . . . To avoid similar problems on remand, the district court might consider contacting members of the bar to determine if any would be willing to represent the Tabaris at a reduced rate or on a volunteer basis.”

Of course, what’s truly sad and most pathetic is that Toyota’s lawyers, rather than doing the right thing at this stage and just ending the litigation (possibly with a consent agreement, but on terms that allow the Tabaris to keep their domain names but which alleviates any concerns Toyota has regarding confusion) will more than likely continue to push for the domain names even though the Tabaris have clearly shown that they will not back down in this case and will continue to fight. Toyota may even be foolish enough to appeal this Court's decision to the U.S. Supreme Court (although not before filing a motion for reconsideration, possibly en banc). One wonders why Toyota would want to continue paying its high-priced attorneys in the face of such a defeat against two unrepresented parties. But based on the Ninth Circuit’s decision and the Tabaris’ unwielding determination (and acquired acumen regarding the legal system and due process), who really has the better chance of winning in the end?