No Need To Engage In Likelihood Of Confusion Analysis Where Consumers Could Not Be Confused About A Product's Origin

Case: Top Tobacco, L.P. v. North Atlantic Operating Company, Inc., Case No. 07-1244 (7th Circuit Court of Appeals, December 4, 2007)

The One Sentence Summary: A picture is worth a thousand words: here, one glance is enough to decide that there is no probability of confusion.


Top Tobacco sued its competitor, North Atlantic Operating Company ("North Atlantic"), because North Atlantic re-designed its competing product with a label that included the phrase "Fresh-Top Canister." Top Tobacco claimed that North Atlantic could not use the word "top" as a trademark.

The Seventh Circuit Court of Appeals affirmed the district court's grant of summary judgment for North Atlantic, finding that "[i]t is next to impossible to believe that any consumer, however careless, would confuse these products." Under the circumstances, there is no need to analyze the "likelihood of confusion" factors because they are mere proxies for determining whether there is confusion. "If we know for sure that consumers are not confused about a product's origin, there is no need to consult even a single proxy."

Here is my favorite passage: "the word 'top' is too common, and too widely used to refer to the lids of packages - as well as parts of clothing ensembles, masts of ships, summits of mountains, bundles of wool used in spinning, half-innings of baseball, positions in appellate litigation (the top-side brief), and flavors of quark - to be appropriated by a single firm." In other words, please don't waste our time in the future.