The Power of Pictures Sways the Seventh Circuit
Apparently, for the Seventh Circuit, a picture is indeed worth a thousand words--at least in the absence of any evidence contradicting that picture.
Top Tobacco--the plaintiff in this trademark case--started off with a difficult position, claiming that it had exclusive rights to the common word "top" in the cigarette tobacco market. Top Tobacco, which uses the mark TOP above a drawing of a spinning top, sought to stop North Atlantic from using the phrase "Fresh-Top Canister" on its cigarette tobacco cans.
The district court granted summary judgment for North Atlantic and the Seventh Circuit affirmed concluding that "[o]ne glance" at the pictures of the canisters "side by side" was "enough to decide the appeal." Based on these pictures, the Seventh Circuit concluded that it was "next to impossible" to believe that even the most careless consumer would confuse the products. And although the Court acknowledged that "next to impossible" was not "absolutely impossible," the pictures were all the Court had because Top Tobacco did not conduct a survey or produce any affidavits from consumers or merchants demonstrating confusion.
To see the pictures that decided the appeal and read the Seventh Circuit's opinion in Top Tobacco, L.P. v. North Atlantic Operating Co., No. 07-1244, see here.
