D. There Is No Likelihood That Any Consumer Would Be Confused About Whether Taubman Is the
Source of Mishkoff's Websites.
Taubman's brief attempts to justify the injunction against the "shops" site by performing the
factor by factor analysis that this Court requires in trademark cases to establish a likelihood of
confusion, but which the district court failed to perform. With respect to most of the factors,
however, Taubman does not respond to the arguments in Mishkoff's opening brief, at 45-51. This section
of the brief addresses only those factors on which Taubman advances arguments that were not
anticipated there.
[Note: Although the district court theorized that some Internet users might be confused about whether
the "sucks" page was sponsored by Taubman, because one line on the "sucks" home page expressed
Mishkoff's continued admiration for the mall, REN 48 at 3 n1, JA197, Taubman does not defend this
reasoning or otherwise argue that there is any likelihood of confusion about the source of the "sucks"
page.]
Relatedness of Services
The only aspect of this factor that was not addressed in Mishkoff opening brief is Taubman's
argument, at 32, that the record does not support Mishkoff's characterization of his "shops" site as a
fan site because it is not a testimonial about how the mall turned out and includes no memorabilia.
This argument does not bear on the relatedness of services. In addition, it ignores the fact that
Taubman filed this suit as soon as the mall opened, and a preliminary injunction was granted two
months later. Even assuming that a fan site needs to have such contents, Mishkoff did not have the
time to add memorabilia or personal experiences to the site before he was forced to remove it from the
Internet. And, Taubman's contention that the "shops" site could not be a fan site because it is
confusingly similar to Taubman's own website, TaubBrf. 32, 37, is belied by a side by side comparison
of the "shops" site, which appears on the CD in the record as REN53, and www.shopwillowbend.com, which
can be seen online and is obviously very different. (By contrast, several of the pages attached to the
motion for a preliminary injunction, JA39-44, were not part of Mishkoff's website, as the URL's at the
bottom left corner of each page reveal.)
[Note: Taubman's argument about the relatedness of services is inconsistent with its argument that
Mishkoff's site is commercial because it promotes Mishkoff's services as an Internet consultant. If
those were the services that Mishkoff was using the trademark to promote, they are completely
unrelated to the services for which Taubman has obtained the "The Shops at Willow Bend" trademark.]
Likely Degree of Purchaser Care
Taubman argues that web visitors to a site about its shopping mall are looking for "deals" or
information on opening dates and hours and are unlikely to exercise any "purchaser care." Taubman has
no evidence on this point, and its citation is to a case about packages of tea, not an upscale
shopping mall. Nor does Taubman show that, in seeking such information, Internet users even care about
whether they get it from the owner of the mall or from an independent third party. And yet, as the
opening brief explained, this Court has held that there is no liability for infringement unless the
use of the trademark has some tendency to deceive "prospective purchasers who care about source."
MishBrf. 31, citing cases. Because Taubman has not rebutted this point, this concession about the
identity of the purchasers and their interest in the website condemns its claim against Mishkoff.
Taubman's other argument, that the Court should assume that Internet users are stupid and that they
will not notice small differences in domain names, was rebutted above at pages 5-6.
Mishkoff's Intent in Selecting the Mark
To the extent that Taubman predicates its argument about Mishkoff's intent in using the name "The
Shops at Willow Bend" on his website and in its domain name on the allegation that he sought to "make
a quick $1000" by selling the name to Taubman, or by diverting traffic to his home page, those claims
are rebutted above, at pages 18-19.
Mishkoff's Prominent Disclaimer
Under this factor, Taubman cites PACCAR v. Telescan, supra, for the proposition that web
surfers are easily confused and that disclaimers do not eliminate the likelihood of confusion by an
otherwise confusing domain name. In PACCAR, however, the disclaimer was provided in tiny type,
at the very bottom of a lengthy page where it could easily have been missed by the average internet
viewer. (The home pages are set forth in an appendix to the opinion, 115 FSupp2d at 782, 785 et
seq.) Here, by contrast, the disclaimer is set forth in a brightly colored box near the top of the
home page, where no visitor to the page could possibly miss it, and it is accompanied by a hyperlink
to the official site for The Shops at Willow Bend so that any viewer who prefers that site can go
directly there. (See addendum to this brief). Indeed, the disclaimer in PACCAR was even more
obscure than the link to Mishkoff's home page, which Taubman has repeatedly proclaims to be an
"advertisement" for Mishkoff's services that has increased traffic to Mishkoff's home page and that is
Mishkoff's real reason for creating the page. If the WebFeats link is prominent enough to be
considered in the case, so is the disclaimer.
