The US Court of Appeals for the Ninth Circuit upheld a dismissal of claims that the mark SHARE THE LOVE was likely to cause confusion with the mark A WORLD OF LOVE, FOR YOU AND THOSE YOU LOVE, because the marks, considered in their entireties, are so facially dissimilar that they cannot plausibly create a likelihood of confusion. Marilyn D. Mintz v. Subaru of America, Inc., Case No. 16-16840 (9th Cir., Dec. 12, 2017) (per curiam) (non-precedential). 

Marilyn Mintz filed a complaint claiming that Subaru’s use of the trademark SHARE THE LOVE for a holiday-season campaign that donates money from car purchases to various national and local charities was likely to be confused with her mark A WORLD OF LOVE, FOR YOU AND THOSE YOU LOVE, and was likely to dilute her mark. Mintz further alleged that Subaru’s mark infringed upon her copyrighted designs and publications.

To establish trademark infringement, a plaintiff must plausibly allege that the claimed infringing design and phrase are likely to cause confusion, to cause mistake or to deceive. To establish trademark dilution, a plaintiff must plausibly allege that the mark infringed upon is famous and distinctive and that use of the infringing mark is likely to cause dilution by blurring or dilution by tarnishment. Finally, to establish copyright infringement, a plaintiff must plausibly allege that the owner of the infringing works had access to the work infringed upon, and that the works at issue are substantially similar in their protected elements.

The district court dismissed Mintz’s trademark infringement claim, finding that the design and phrase used in Subaru’s campaign and Mintz’s trademarked phrase only share the generic word “love,” which could not be trademarked on its own and could not plausibly be the ground for an infringement claim. The district court also found that Subaru’s “design depicting a hand with a heart on it is plainly not similar to Mintz’s ‘Heart on Hand’ trademark except in the use of a common symbol. Mintz’s design includes a hand that is circumscribed by a heart and includes an entire body; Subaru’s design includes a hand that radiates blue beams and is not connected to a body.” The district court found that, considered in their entireties, “the designs are so facially dissimilar that they cannot plausibly create a likelihood of confusion.” The district court also dismissed Mintz’s trademark dilution claim and copyright infringement claims. Mintz appealed.

The Ninth Circuit affirmed, explaining that Mintz did not plausibly allege trademark infringement because the design and phrase used in Subaru’s SHARE THE LOVE campaign are obviously dissimilar from Mintz’s marks. For similar reasons, the Court affirmed the dismissal of Mintz’s dilution claims. Lastly, the Court upheld the district court’s dismissal of Mintz’s copyright claims, holding that Mintz did not plead sufficient facts showing that Subaru had access to Mintz’s work and that the works were substantially similar in protected elements.