MJM Productions v. Kelley Productions CV-03-390-JD 09/24/03 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

MJM Productions, et al.

v. Civil No. 03-390-JD Opinion No.

Kelley Productions, Inc., et al.

O R D E R

The plaintiffs, MJM Productions ("MJM"), Michael J. MacLeod,

and Jefferson Dutton have produced a film called Brotherhood,

which is set in a small town in New Hampshire. They bring suit

against Kelley Productions, Inc. ("KPI"), CBS Broadcasting, Inc.

("CBS"), and Twentieth Century Fox Film Corporation ("Fox"),

alleging that the defendants' television series. The Brotherhood

of Poland, New Hampshire, constitutes unfair competition and

infringes their trademark rights in Brotherhood. The plaintiffs

seek a preliminary injunction with certain restraints against the

defendants' use of "Brotherhood," including an injunction against

the broadcast of The Brotherhood of Poland, New Hampshire, in New

Hampshire. The series is scheduled to premiere nationwide on

September 24, 2003. The court held a hearing on the plaintiffs'

motion on September 22, 2003. Background

The court makes the following preliminary findings of fact

based on the evidentiary materials submitted by the parties and

the representations of counsel at the motion hearing. See Fed.

R. Civ. P. 52(a); TEC Enq'q Corp. v. Budget Holders Supply, Inc.,

82 F .3d 542, 544 (1st Cir. 1996).

A. The Plaintiffs' Perspective

The following facts are drawn from MacLeod's affidavit,

submitted in connection with the motion for preliminary

injunction.1 The plaintiffs' film was born in March 2002, when

MacLeod and Dutton began to develop the idea for a story about a

group of friends returning from college to a small town in New

Hampshire. MacLeod owns defendant MJM, a film production and

location scouting company in Manchester, New Hampshire. Dutton

studies film at a college in upstate New York.

MacLeod and Dutton began writing the film in April of 2002.

The screenplay focused on five male characters, with the action

centered around an actual diner in Derry, New Hampshire.

Shooting took place between June 24, 2002, and July 15, 2002, at

1The defendants have filed an objection to a number of the statements in MacLeod's affidavit on evidentiary grounds. For reasons which will appear, the resolution of this objection is not material to the outcome of the plaintiffs' motion.

2 in-state locations, including the diner. The film premiered in a

private showing at the same diner on August 9, 2002.

MJM later submitted copies or synopses of the screenplay to

"several major motion picture and television studios." Warner

Brothers apparently expressed interest, asking for a copy of the

screenplay for consideration as a motion picture, reviews of the

film published by college students, and a script for a television

version of the film. At Warner Brothers' direction, MJM screened

the film in a theater at Brandeis University in Massachusetts on

December 3, 2003, receiving a "very positive" audience reaction.

MacLeod also claims that "[t]he film was discussed with Fox Los

Angeles," although he does not relate the participants, content,

time, or place of these discussions.

The film also drew the attention of local media.A

Manchester radio station interviewed Dutton and MacLeod about the

film in June 2002. Another interview was broadcast on the Derry

television station WNDS in early July 2002, and an article about

the film appeared in The Derry News and The New England

Entertainment Digest around the same time. In late November

2002, WNDS aired another interview with MacLeod and Dutton, which

included a synopsis of and clips from the finished film.

Following the screening at Brandeis, The New England

Entertainment Digest ran another article about the film, which

3 "contained many positive comments." MacLeod claims that he and

his company "invested almost all our time, efforts and money in

developing, creating, filming, publicizing and marketing the

film" between early 2002 and spring 2003. Apart from the facts

already set forth, however, MacLeod's affidavit does not describe

any of these efforts, how much they cost, or their degree of

success. The plaintiffs' counsel conceded at the hearing that

Brotherhood has never been shown to a paying audience in New

Hampshire. It is not clear whether the attendees at the Brandeis

screening were charged admission.

MacLeod's affidavit is also unclear as to when the

plaintiffs began calling their film Brotherhood. Although he

uses the name to refer to the plaintiffs' film as it existed

throughout its development, he also relates that as late as July

2002, the film was "tentatively titled The Town of Brotherhood."

No other evidence on this point was submitted. The court finds

that the plaintiffs did not begin calling their film The Town of

Brotherhood until July 2002, and did not use the title

Brotherhood until they first screened the film on August 9, 2002.

In February 2003, a WNDS reporter called MacLeod to

congratulate him, believing he had sold Brotherhood to be

released as David E. Kelley's The Brotherhood of Poland, New

Hampshire. That was the first time MacLeod heard of The

4 Brotherhood of Poland, New Hampshire. Later that month, MacLeod

claims to have called KPI and "asked them to change the name of

their television series," only to be rebuffed by Veronica Wilson,

KPI's vice president of legal affairs.2 Beginning with a letter

from MJM's attorneys to KPI on April 11, 2003, counsel for MJM

and KPI engaged in acerbic correspondence about the use of

"Brotherhood" in the title of KPI's series and the degree of

similarity between its content and that of MJM's film. MJM's

lawyers threatened suit in a letter to CBS' general counsel on

June 11, 2003. They also offered to forebear from filing an

action until June 25, 2003.

When that day arrived, however, KPI, Fox, and CBS brought a

declaratory judgment action in the United States District Court

for the Central District of California, challenging MJM's and

MacLeod's claim to trademark rights in "Brotherhood." MJM and

MacLeod filed a motion to dismiss or transfer that case to New

Hampshire on the basis of lack of personal jurisdiction on July

28, 2003. On August 25, 2003, the court in California granted

the ex parte application of the plaintiffs for discovery on the

2Wilson remembers her conversation with MacLeod differently. She relates that he simply "asked if there might be any conflicts" between MJM's Brotherhood and KPI's series, and wished her "good luck with [KPI's] project" at the end of the conversation. The resolution of these competing versions of the call, however, is not material to the outcome of this motion.

5 jurisdictional issue and scheduled a hearing on the pending

motion for November 17, 2003. Because the hearing was to take

place after The Brotherhood of Poland, New Hampshire was to

debut, MJM, MacLeod, and Dutton filed this action on September

10, 2003, together with a motion for a preliminary injunction.

B. The Defendants' Perspective

The defendants offer a different backstory to this

litigation. Kelley, the chief executive officer of KPI and the

creator of a number of previous television series, wrote the

script which became the pilot episode of The Brotherhood of

Poland, New Hampshire in 2002. At that time, he had never heard

of any of the plaintiffs or their Brotherhood project.

KPI later reached an agreement with Fox to distribute the series

On January 17, 2003, Fox registered the pilot with the United

States Copyright Office under the name The Brotherhood of Poland

New Hampshire. Fox claims to have no record of any feature film

entitled Brotherhood which was submitted for its consideration a

of April 2003 or, for that matter, any feature film submission

which involved any of the plaintiffs.

In February 2003, Fox ordered a "trademark and title search

of the title The Brotherhood of Poland, New Hampshire. The

search revealed no existing films or television series with the same name, but turned up more than fifty works with the word

"Brotherhood" in the title. Fox's April 17, 2003, search of the

Internet Movie Database, <www.imdb.com>, revealed fifteen films,

eight made-for-TV movies, and four straight-to-video releases

whose titles included the word "Brotherhood." On the same day,

Amazon.com was offering for sale 422 books, 10 DVDs, and 24

videos containing "Brotherhood" in their titles. The

Filmtracker/Baseline database, a storehouse of information on

film and television development, listed 27 projects whose titles

included "Brotherhood" as of April 21, 2003. At this preliminary

stage in the proceedings, the court finds the foregoing

evidence--which was received without objection from the

plaintiffs--sufficiently reliable to demonstrate the widespread

use of the word Brotherhood" as an artistic or literary title.

The series, which the defendants plan to broadcast on CBS,

"focuses on the family and career challenges of three middle-aged

brothers in the fictional town of Poland, New Hampshire." Aside

from a portion of the pilot episode shot in the real New

Hampshire town of Plymouth, the entire series to date has been

filmed in California.3

3During the war of words which preceded the litigation, the plaintiffs claimed further similarities between the content of their film and that of The Brotherhood of Poland, New Hampshire in that the series is to contain scenes shot in a diner and

7 CBS claims to have spent "well in excess of $10 million" to

date promoting The Brotherhood of Poland, New Hampshire. This

sum paid for on-air promotions, national print ads, local radio

and cable spots, and billboards and other outdoor print media,

all of which "prominently featured the title . . . in an effort

to make the name memorable and synonymous with the [p]rogram."

Accordingly, the defendants contend that they cannot change the

name at this late date without losing viewers. CBS also contends

that the sole means of stopping the program from airing in New

Hampshire is to pull it from its affiliates in Boston,

Massachusetts, Burlington, Vermont, and Portland, Maine, each of

which broadcasts into part of New Hampshire. This would cause

more than 2.5 million viewers outside of New Hampshire to miss

the show as well, imperiling the ratings guarantees which CBS has

made to its advertisers in connection with the premiere. CBS

expects the premiere alone to generate $1.3 million in revenue.

feature flashbacks to the college days of the middle-aged characters. The plaintiffs offered no competent evidence on this point in connection with their motion, however. More importantly, the Supreme Court has made clear that the Lanham Act does not protect "any idea, concept, or communication" embodied in a film, but merely the film itself as a tangible good. See Dastar Corp. v. Twentieth Century Fox Film Corp., 123 S. C t . 2041, 2050 (2003). Accordingly, the asserted similarities between the content of the plaintiffs' and defendants' works does not inform the court's analysis of the plaintiff's claim. Standard of Review

A court must consider four factors when determining whether

to issue a preliminary injunction: (i) the plaintiff's

likelihood of success on the merits; (ii) whether the plaintiff

risks suffering irreparable harm if the injunction is not

granted; (ill) whether such injury outweighs the harm that

injunctive relief would cause for the defendant; and (iv) whether

the public interest would be adversely affected by granting or

denying the injunction. See Am. Bd. of Psychiatry & Neurology,

Inc. v. Johnson-Powell,

(1st Cir. 1997). "In the

trademark context, 'irreparable harm may be shown even in the

absence of actual injury to plaintiff's business based on

plaintiff's demonstration of a likelihood of success on the

merits on its claim.'" I.P. Lund Trading ApS v. Kohler Co.,

(1st Cir. 1998) (guoting Calamari Fisheries, Inc. v.

Village Catch, Inc.,

(D. Mass. 1988)).

The key issue, therefore, is the plaintiffs' likelihood of

success on the merits. See New Comm Wireless Servs. v.

Sprintcom, Inc.,

(1st Cir. 2002) .

Discussion

The plaintiffs' complaint asserts claims against the

defendants for (1) trademark infringement, (2) false designation of origin under section 43(a) the Lanham Act,

(a), (3) violation of New Hampshire Revised Statutes

Annotated 358:A, which prohibits unfair or deceptive trade

practices, (4) conversion, and (5) unjust enrichment. In their

memorandum in support of their motion for preliminary injunction,

however, the plaintiffs elected to proceed solely on the basis of

their trademark claim under the Lanham Act. The court's analysis

of the plaintiffs' motion is therefore limited to that ground.

The plaintiffs seek alternative forms of injunctive relief.

They ask the court either to prohibit the defendants from

broadcasting their program in New Hampshire under its current

title, or to reguire them to air the show (and any future

television advertising of it) in New Hampshire only with a

written disclaimer that it is "not affiliated with or sponsored

by the film Brotherhood produced by MJM Productions of

Manchester, New Hampshire." The plaintiffs do not contend that

the name "Brotherhood" has achieved distinctiveness outside of

New Hampshire, or that The Brotherhood of Poland, New Hampshire

will be confused with their film outside of New Hampshire.

The defendants object on a number of grounds. First, they

criticize the plaintiffs for waiting until the eleventh hour to

enjoin the broadcast, despite having known about The Brotherhood

of Poland, New Hampshire since February 2003. Second, they

10 dispute that the plaintiffs have shown a likelihood of success on

their trademark claim, because their mark is neither distinctive

nor is their film likely to be confused with the defendants'

series. Finally, the defendants contend that the balance of

harms tips in their favor, given their investment in promoting

the series to premiere under its current name.4

A. The Plaintiffs' Delay in Seeking Injunctive Relief

In deciding whether to issue an injunction, a court may take

into account the movant's delay in seeking injunctive relief.

See SMA Life Assurance Co. v. Sanchez-Pica,

(1st Cir. 1992); 13 James Wm. Moore et al., Moore's Federal

Practice § 65.06[5][b] (2003). The plaintiffs admit to learning

of the existence of The Brotherhood of Poland, New Hampshire in

February 2003, more than six months before they brought this

action to enjoin the program on September 10, 2003. The

defendants imply that the plaintiffs have intentionally tried to

gain an unfair advantage by waiting until just sixteen days

4Ihe defendants also moved to transfer this case to the Central District of California to be consolidated with the litigation pending there, or to stay this action until the California case is resolved. At the hearing on the preliminary injunction, the court ruled that it would take up the merits of the defendants' motion after considering the plaintiffs' application for injunctive relief, and after the plaintiffs had an opportunity to respond to the defendants' motion.

11 before the scheduled premiere of the series to seek an

injunction. The plaintiffs explain that they were initially held

up by their efforts to resolve the dispute without litigation, as

presumably reflected by their lawyers' letters to the defendants

during the late spring of 2003. The plaintiffs attribute their

inaction over the summer to the defendants' tactic of bringing

suit against them in California and then delaying the resolution

of their personal jurisdiction defense. Under these

circumstances, the plaintiffs contend that their motion for a

preliminary injunction was timely, brought shortly after it

became clear that their motion to dismiss the California action

for lack of personal jurisdiction would not be heard until after

the program debuted.

The defendants' objection to the last-minute effort by the

plaintiffs to enjoin the showing of The Brotherhood of Poland,

New Hampshire as scheduled is well-taken. Indeed, the

plaintiffs' proffered justification--that they expected their

motion to dismiss the California action to be decided in advance

of the show's premiere--makes little sense. First, their

position assumes that their motion to dismiss or transfer the

litigation would have been granted.5 Second, the dismissal of

5Naturally, this court expresses no opinion on the merits of the jurisdictional issue raised in the California action.

12 the California case for lack of personal jurisdiction would have

done nothing to resolve the merits of the plaintiffs'

infringement claim and therefore posed no obstacle to the

defendants' proceeding with the broadcast as scheduled. In

short, the pendency of the California action should not have

factored heavily into the plaintiffs' decision to abstain from

seeking to enjoin the premiere of the defendants' program in a

more timely fashion. The court is therefore left to conclude

that the timing of the plaintiffs' reguest for injunctive relief

was primarily the product of tactical, rather than practical,

considerations. Nevertheless, the court does not find the

plaintiffs' delay in pursuing relief in this court, in and of

itself, sufficient grounds to deny the injunction.

B. The Plaintiffs' Likelihood of Success on The Merits

In the First Circuit, a preliminary injunction cannot issue

absent the movant's "clear likelihood of success" on the merits

of its claim. Pve ex rel. NLRB v. Sullivan Bros. Printers, Inc.,

(1st Cir. 1994). The parties are in agreement

that, in order to prevail on their claim under section 4 3 (a) of

the Lanham Act, the plaintiffs must prove both that (1)

"Brotherhood" has acguired a distinctiveness sufficient to

gualify it for trademark protection, and (2) the defendants' use

13 of The Brotherhood of Poland, New Hampshire as a title causes a

likelihood of confusion between the sources of their show and the

plaintiffs' film. See

(a); Chrysler Corp. v.

Silva,

, 58 (1st Cir. 1997).

_____ 1. The distinctiveness of the plaintiffs' mark.

The plaintiffs concede that, because Brotherhood is the

title of a single literary work, they can prove distinctiveness

solely on the basis of secondary meaning (as opposed to showing

that the title is arbitrary, fanciful, or suggestive). See Twin

Peaks Prods., Inc. v. Publ'ns Int'l, Ltd.,

, 1379 n.

4 (2d Cir. 1993); 2 J. Thomas McCarthy, McCarthy on Trademarks

and Unfair Competition § 10:2 (4th ed. 2003). In order for a

literary title to have secondary meaning, consumers must

associate it with a particular source, but need not know the

identity of the source itself. See 2 McCarthy § 10:10.

"'Proof of secondary meaning entails vigorous evidentiary

reguirements.'" Boston Beer Co. Ltd. P'ship v. Slesar Bros.

Brewing C o .,

(1st Cir. 1993) (guoting Perini

Corp. v. Perini Constr., Inc.,

(4th Cir.

1990)). A party may fulfill these reguirements through either

direct or circumstantial evidence. See Yankee Candle Co. v.

Bridgewater Candle Co.,

(1st Cir. 2001). Consumer

14 surveys are the only form of direct evidence of a mark's

secondary meaning which courts have generally accepted. See

Boston Beer,

. Indeed, "[c]ustomer survey evidence,

while not reguired, is a valuable method of showing secondary

meaning." I .P . Lund,

.

The plaintiffs have not come forward with proof of any

consumer survey attesting to a public association between the

title Brotherhood and any single source. Instead, they have

submitted affidavits from thirty-two people who claim to be

"familiar with the film ''Brotherhood' which was written by

Jefferson Dutton and produced by Michael MacLeod and MJM" and to

have "associated the movie title 'Brotherhood' with [the

plaintiffs] and not with any other company or person." The court

finds these affidavits wanting in several respects as direct

evidence of secondary meaning.

As an initial matter, the individual statements of a select

group of individuals do not constitute the kind of survey

evidence which courts have traditionally found probative of a

mark's secondary meaning. C f . President & Trs. of Colbv Coll. v.

Colbv Coll.-N.H.,

(1st Cir. 1975) (testimony of

"experienced surveyor" who polled "representative cross-section

15 of the population," consisting of 500 people each from Maine, New

Hampshire, and metropolitan Boston, accepted as evidence of

secondary meaning in New England); 2 McCarthy § 15:42 ("To be

effective, a survey must be carefully conducted by an expert

survey director . . . [QJuestions to be asked in the survey must

be carefully phrased so as to elicit honest and unprompted

consumer reaction . . . .

Here, the plaintiffs have provided no explanation whatsoever

as to how the affidavits were procured, including how the

affiants were selected from the consuming public or what

guestions were asked of them. Moreover, in the absence of any

expert testimony to the contrary, the court cannot accept the

views of thirty-two people (five of whom do not even reside in

New Hampshire) as reflecting the secondary meaning of the

plaintiff's mark across the state. Finally, the conclusory

nature of the statements in the affidavits, the similarity of

each affiants' testimony to that of the others, and the fact that

many of the witnesses claim to have spoken with one of the

plaintiffs before swearing out the affidavit casts further doubt

on their evidentiary value. The court finds the affidavits to

constitute unpersuasive evidence of secondary meaning.

16 Although consumer survey evidence is valuable, it has

never been treated as a "sine qua non" of secondary meaning in

the First Circuit. I .P . Lund,

. Secondary meaning

may also be proven through circumstantial evidence. The circuit

has endorsed a number of factors to be considered in assessing

circumstantial proof of a mark's secondary meaning. They

include: (1) the length and manner of the mark's use, (2) the

nature and extent of its advertising and promotion, (3) the

efforts made to promote a conscious connection between the mark

and the product's source, (4) the product's established place in

the market, and (5) proof of the defendant's intentional copying

of the mark. See Yankee Candle,

. The list of

factors is not intended to foreclose other means of proving

secondary meaning. See I .P . Lund,

. In addition,

a party need not prove the existence of each factor in order to

prevail on a showing of secondary meaning. See

The plaintiffs argue that, because they have proven that the

defendants intentionally copied the title of the film, the burden

shifts to the defendants to prove that Brotherhood lacks

secondary meaning. For this proposition, the plaintiffs rely on

Yankee Candle,

. In that case, however, the First

17 Circuit listed "proof of intentional copying" among the factors

to be considered in evaluating secondary meaning, rather than

assigning it any special weight.

. Moreover, the court

expressly found that the plaintiff's evidence of intentional

copying was not probative of secondary meaning, despite evidence

that the defendant's designers were told to make their wares look

more like the plaintiffs'. See

Accordingly, Yankee Candle

does not appear to adopt the minority view that evidence of

copying triggers a presumption of secondary meaning. See 2

McCarthy § 15:38.

In any event, the plaintiffs' argument depends on a factual

premise wholly unsupported by the evidence. The plaintiffs

invite this court to infer that the defendants intentionally

copied the title Brotherhood from the fact that the defendants

refused to rename The Brotherhood of Poland, New Hampshire as

demanded by the plaintiffs. The court declines to make that

inference. The argument that the defendants acted wrongfully by

refusing to scrap their title on the asserted strength of the

plaintiffs' mark presumes exactly what is at issue in this

litigation. Furthermore, the evidence submitted by the

defendants demonstrates that (1) Kelley had never heard of the

18 plaintiffs or their film before April 2003, long after the pilot

had been registered with the copyright office as The Brotherhood

of Poland, New Hampshire, (2) Fox has no record of having

received anything concerning the plaintiffs' film, and (3) Fox

performed due diligence in August 2003 which failed to reveal the

existence of Brotherhood. The court finds no evidence that the

defendants intentionally copied the plaintiffs' mark.

The plaintiffs also argue that the "length and exclusivity"

of their use of Brotherhood, their efforts to market and promote

the film, and the media attention it has received point in the

direction of the title's secondary meaning. The court disagrees.

First, MacLeod's affidavit establishes that the plaintiffs have

been using the word "Brotherhood" in their film's title since

July 2002 at the earliest. Thus, no more than six months had

elapsed between the plaintiffs' use of the mark and Kelley's

registration of The Brotherhood of Poland, New Hampshire with the

copyright office. In addition, the plaintiffs' use of

"Brotherhood" was in no way exclusive, given the number of pre­

existing films, television programs, and other media which also

used the word in their titles. The court finds that the factor

of the length and exclusivity of the plaintiffs' use of their

19 mark does not weigh in favor of a finding of secondary meaning.

The court also finds that the plaintiffs' promotional and

marketing efforts do not suffice to establish secondary meaning.

The plaintiffs argue, in essence, that due to their limited

resources they should face a lower threshold in making out this

factor. Regardless of the merit of this contention as an

eguitable matter, the plaintiffs simply have not provided enough

proof of their endeavors in promoting and marketing their film.

MacLeod himself states that his efforts in this regard were

limited to just over one year's time, between early 2002 and

spring 2003.6 They also appear to have been limited to screening

the film twice (once outside of New Hampshire) and attempting to

interest film and television studios in a largely unspecified

way. Indeed, MacLeod does not describe his efforts with any

particularity, making it impossible to gauge their intensity.

Most significantly, the plaintiffs concede that nobody has

ever paid to see their film, at least in New Hampshire. Although

some courts and commentators have recognized that pre-sales

61he plaintiffs argue that this period should be deemed sufficient because MacLeod gave up on trying to promote their film only after learning of the defendants' production. Again, this argument presumes what is at issue in this litigation, i.e., that the defendants were wrongfully using the word "Brotherhood" in the title of their series.

20 publicity can suffice to create secondary meaning even before a

product has actually been sold, the evidence does not support

such a theory here. C f . 2 McCarthy § 15:57. Based on this

evidence, the court concludes that the plaintiffs' marketing and

promotional efforts have not lent secondary meaning to the title

Brotherhood.

The plaintiffs suffer from a similar evidentiary deficiency

with regard to their argument that Brotherhood has accumulated

secondary meaning through the unsolicited media attention the

film has received. Indeed, while MacLeod lists a number of

stories about the film which have run in the local media, the

plaintiffs have not supplied any of those news articles, or

transcripts of the radio or television interviews. Accordingly,

it is impossible to determine whether any of these stories (save

that which referred to the film as "tentatively titled The Town

of Brotherhood") even referred to the film by its title. In

addition, the plaintiffs have not presented any information, such

as circulation or audience statistics, which would enable the

court to determine whether these stories reached enough consumers

to create secondary meaning throughout the state. The court

finds that the plaintiffs' evidence of "unsolicited media

21 attention" does not establish secondary meaning.

Accordingly, the court finds that the plaintiffs have failed

to carry their burden to show a secondary meaning attributable to

the title Brotherhood. Based on the evidence presented in

connection with the preliminary injunction motion, the court

rules that the likelihood of success on the merits of the

plaintiffs' Lanham Act claim is highly improbable.

_____ 2. Likelihood of consumer confusion

Having found that the plaintiffs' mark was "not entitled to

trademark protection because [it has] not attained secondary

meaning, . . . the court [does] not need to address the guestion

of likelihood of confusion." Boston Beer,

.

Nevertheless, the court also finds that there is little

likelihood of confusion between the plaintiffs' film title and

the name of the defendants' television series, based largely upon

the findings already set forth.

The First Circuit has listed eight factors to be weighed in

considering likelihood of confusion, including: (1) the

similarity of the marks; (2) the similarity of the goods; (3) the

relationship between the parties' channels of trade; (4) the

22 relationship between the parties' advertising; (5) the classes of

prospective purchasers; (6) evidence of actual confusion; (7) the

defendants' intent in adopting their mark; and (8) the strength

of the plaintiffs' mark. See Boston Athletic Ass'n v. Sullivan,

(1st Cir. 1989). Other than the apparent

similarity of the marks, none of these factors appears to weigh

in the plaintiffs' favor. A nationally broadcast television

program and a film which has been shown only twice cannot be said

to be similar goods, share channels of trade, or target the same

classes of purchasers. The defendants have advertised their film

through a number of national media channels, while the plaintiffs

provide no evidence of how they have advertised their film (if at

all). Finally, for the reasons set forth in the court's analysis

of secondary meaning, it is clear that there is virtually no

probative evidence of actual confusion or actual copying, and

that the plaintiffs' mark is weak. Accordingly, the court finds

that the plaintiffs have failed to shoulder their burden of

showing a likelihood of confusion.

23 Conclusion

Based on the foregoing, the plaintiffs' motion for

preliminary injunction (document no. 3) is DENIED for failure to

show a likelihood of success on the merits of their Lanham Act

claim.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

September 24, 2003

cc: Irvin D. Gordon, Esguire Mark Schonfeld, Esguire Cameron G. Shilling, Esguire Adam J. Thurston, Esguire Rodney F. Page, Esguire

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