UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Granite State Trade School, LLC

v. Civil No. 15-cv-223-LM Opinion No.

The New Hampshire School of Mechanical Trades, Inc.

ORDER

New Hampshire, home to extensive granite formations and

innumerable quarries, has long been known as the Granite State.

The above-captioned dispute raises a novel, but ultimately basic

question: are the terms “New Hampshire” and “Granite State” so

synonymous that the public is likely to be confused by their

interchangeable use in commercial advertising?

The plaintiff, Granite State Trade School, LLC (“Granite

State”), and the defendant, The New Hampshire School of

Mechanical Trades, Inc. (“NHSMT”), are both in the business of

training plumbers, gas fitters, and other tradesmen. Granite

State has brought this lawsuit, alleging that NHSMT’s use of two

website addresses (known as “URLs”)1 is deceptive, and may cause

prospective students to confuse the two schools.

1 “URL” stands for uniform resource locator. 1 Granite State seeks a preliminary injunction barring NHSMT

from using these URLs during the pendency of the litigation.

NHSMT objects, and the court held a full-day evidentiary hearing

on July 7, 2015. For the reasons that follow, Granite State’s

motion for preliminary injunction is denied.

Background

Since its founding in 2006, Granite State has used the URL

www.granitestatetradeschool.com. Through its website, Granite

State advertises its services to prospective students, and

allows students to register for courses online.

NHSMT was founded in 2010, and began offering courses in

2012. Like Granite State, NHSMT uses its website to promote its

services and to allow students to register for courses.

Initially, NHSMT exclusively used the URL www.tnhsmt.com, a

basic acronym of its name. Later, however, NHSMT began using

the URLs www.nhtradeschool.com and www.nhtradeschool.net in its

advertisements. While the content of NHSMT’s website still

appears at www.tnhsmt.com, the www.nhtradeschool.com and .net

URLs automatically redirect users to www.tnhsmt.com.

In this dispute, Granite State seeks to bar NHSMT’s use of

the www.nhtradeschool.com and .net URLs. Granite State

maintains that NHSMT’s use of these URLs is likely to mislead

2 prospective students into confusing the two schools because of

their similarity to www.granitestatetradeschool.com.

The court will summarize the evidence offered at the July 7

hearing before discussing the merits of Granite State’s motion

for preliminary injunctive relief.

I. Granite State’s Evidence

Granite State offered the testimony of three witnesses: (1)

James Fusco, the founder and owner of Granite State; (2) John

Brulotte, a former Granite State student; and (3) Karen Chansky,

an internet marketing professional.

Mr. Fusco testified that he founded Granite State in 2006.

Granite State currently offers four courses in gas heating

installation and maintenance, all of which Mr. Fusco teaches

personally. These are the only live courses that Granite State

offers, though students may register for an online plumbing

training and certification program, for which Mr. Fusco serves

as an in-person mentor.

Mr. Fusco testified that to advertise its services, Granite

State relies primarily on radio advertisements and direct

mailings to prospective students. Since 2007, Granite State has

spent some $58,000 on this type of advertising, or approximately

$7,250 per year. In addition, Mr. Fusco testified that Granite

State has used the URL www.granitestatetradeschool.com

3 continuously since its founding in 2006, and has spent a total

of some $19,000 designing and maintaining its website.

Mr. Fusco also testified regarding Granite State’s

financial performance. According to Mr. Fusco, Granite State

experienced a precipitous downturn in student enrollment

beginning in April of 2015, approximately the same time that Mr.

Fusco first learned that NHSMT was airing a radio advertisement

directing prospective students to the www.nhtradeschool.com URL.

Mr. Fusco explained his belief that the enrollment decline is

attributable to students confusing the two schools, and he noted

that his secretary often receives telephone calls from students

attempting to contact NHSMT.

Next, Granite State offered the testimony of John Brulotte,

the owner of a pipe and gas fitting company. Mr. Brulotte

testified that he had taken courses at Granite State in the past

and had enjoyed working with Mr. Fusco, though he acknowledged

that he could not recall the name of Mr. Fusco’s school. Mr.

Brulotte testified that, in April of 2015, he sought to enroll

in one of Mr. Fusco’s recertification courses at Granite State.

Unsure of the name of Mr. Fusco’s school, Mr. Brulotte conducted

an internet search for “New Hampshire trade school.” Believing

he had found Mr. Fusco’s website, Mr. Brulotte clicked on the

first search result. In fact, Mr. Brulotte had found NHSMT’s

website, and he inadvertently enrolled himself in a similar

4 course that NHSMT was offering. Mr. Brulotte did not discover

his mistake until he arrived at Granite State to find that no

such course was being offered that day. On cross examination,

Mr. Brulotte acknowledged that he had been in a hurry and had

not paid careful attention when conducting his search and

registering for the course.

Granite State’s final witness was Karen Chansky, a

marketing consultant Granite State had hired to increase its web

traffic. Ms. Chansky began her work by analyzing the traffic on

www.granitestatetradeschool.com for the period of February to

June of 2015. See Pl.’s Ex. 10. Reproduced in relevant part,

Ms. Chansky’s web traffic analysis showed the following data:

Feb.

Apr. 2015 May 2015 June 2015

Organic Search 596 748 595 439 569

% Organic 73% 57% 55% 32% 31%

Referral 121 409 328 329 423

Direct 96 157 154 616 845

Social 4 4 2 2 3

Total 817 1318 1079 1386 1840

Ms. Chansky explained this data as follows. Internet users

may reach a website through a variety of channels. At the most

basic level, an internet user might reach a website by typing

5 its URL directly into the internet browser. In Ms. Chansky’s

data set, these users would be captured in the “Direct” row.

For example, this data shows that in March of 2015, 157 users

reached Granite State’s website by typing the URL

www.granitestatetradeschool.com directly into their browser.

Second, an internet user might reach a particular website

through a search engine, like Google. Using keyword search

terms, the user will search for relevant websites, then access a

particular website by clicking on a link on the results page.

There is a catch, however, because not all links are created

equal. On a typical Google search results page, for example,

the links at the top are sponsored links placed there by

merchants who have paid for the right to have their website

appear in response to particular keywords. These sponsored

links are known as bid-based “pay-per-click” (or “PPC”) links

because merchants bid on keyword search terms. If a website

owner outbids his competitors, an internet user using those

search terms will find the owner’s website at or near the top of

the sponsored links section.

Just below these sponsored links are non-sponsored, or

“organic” links. Organic links are links that appear in the

search results because the website content matches the keyword

6 search terms, as determined by the search engine’s algorithms.2

In Ms. Chansky’s data set, the top row captures users who

reached Granite State’s website by clicking on an organic link.

Finally, Ms. Chansky’s data captures users who reached

Granite State’s website through a referral or through social

media. A referral simply means that the user clicked on a link

to Granite State’s website posted on some other website. For

example, there was evidence that there are links to Granite

State’s website on the New Hampshire Department of Safety

website. Any user accessing Granite State’s website via one of

these third-party sites would be logged in the “Referral” row.

The final row captures users who accessed Granite State’s

website via a link on a social media site, such as Twitter or

Facebook.

Ms. Chansky testified that she believed NHSMT had

implemented a PPC campaign on Google in or around February of

2015. She explained that NHSMT had bid on certain keywords

(like “New Hampshire trade school”) which, when entered into

Google, would prompt the URL www.nhtradeschool.net to appear at

or near the top of the sponsored links section. She further

2 As an example, if an internet user was to type “car dealers Concord NH” into Google, the top two results would be sponsored links for local Kia and Mazda dealers, and just below those links would be organic links to other area dealerships. 7 explained that, when clicked, this URL would automatically

redirect users to NHSMT’s principal website, www.tnhsmt.com.

Ms. Chansky argued based on her data that NHSMT was

responsible for the decline in enrollment at Granite State. She

focused almost exclusively on the row showing the percentage of

visits to Granite State’s website from organic links. As

depicted in the table above, this percentage steadily declined

from 73% in February to 31% in June. Ms. Chansky attributed

this decline to the fact that NHSMT’s PPC campaign was driving

internet users to NHSMT instead of Granite State.

Finally, Ms. Chansky explained that, in May of 2015, she

and Mr. Fusco decided to implement a PPC campaign for Granite

State. Like NHSMT’s campaign, Granite State’s campaign bids on

relevant search terms. Ms. Chansky testified that the campaign

has been successful and has driven Granite State’s website to

the top of Google’s sponsored links section.3

II. NHSMT’s Evidence

NHSMT’s sole witness was its co-founder, Dean Millard. In

relevant part, Mr. Millard testified as follows. NHSMT was

founded in 2010, and began offering courses in 2012. NHSMT

3Indeed, at the hearing, Granite State’s counsel conducted a Google search for “new hampshire trade school.” The results page placed Granite State’s website atop the sponsored links, one spot above www.nhtradeschool.net. See Pl.’s Ex. 11. 8 currently offers a more extensive curriculum than Granite State,

with live training and certification programs in gas, plumbing,

electrical, oil heat, and HVAC installation and maintenance.

Like Granite State, NHSMT advertises via radio, direct

mailing, and the internet, but unlike Granite State, NHSMT

advertises on a larger scale, also utilizing newspaper and

television advertisements. Compared to Granite State, NHSMT

spends more money on advertising: $31,000 in 2013 and $37,000 in

2014, with $47,000 budgeted for 2015.

Mr. Millard explained that, from 2010 to 2012, while NHSMT

was working toward opening its doors, it used www.tnhsmt.com as

its sole URL. In 2012, however, while working on a television

commercial, Mr. Millard was advised that “tnhsmt” was difficult

to articulate. At the urging of the commercial’s production

director, NHSMT registered the URL www.nhtradeschool.com. Since

2012, NHSMT has used that URL in all of its print, radio, and

television advertising. Mr. Millard explained that NHSMT began

using the URL www.nhtradeschool.net more recently. In June of

2014, NHSMT launched a PPC campaign targeting specific search

terms. In response to those search terms, sponsored links to

the www.nhtradeschool.net URL appear at or near the top of the

search results.

9 Discussion

“A preliminary injunction is an ‘extraordinary and drastic

remedy;’ it is never awarded as of right.” Munaf v. Geren,

(2008) (quoting 11A C. Wright, A. Miller & M.

Kane, Federal Practice & Procedure § 2948, at 129 (2d ed. 1995)

(further citations omitted)). Rather, “[a] plaintiff seeking a

preliminary injunction must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable

harm in the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in the

public interest.” Winter v. Natural Res. Def. Council, Inc.,

(2008); see also Bl(a)ck Tea Soc’y v. City of

Bos.,

(1st Cir. 2004). The court will assess

each of these four elements in turn, mindful that the burden of

satisfying them rests and remains with the party seeking the

injunction. Esso Standard Oil Co. (P.R.) v. Monroig-Zayas,

(1st Cir. 2006).

I. Likelihood of Success on the Merits

“Though each factor is important . . . ‘the sine qua non of

[the] four-part inquiry is likelihood of success on the merits:

if the moving party cannot demonstrate that he is likely to

succeed in his quest, the remaining factors become matters of

idle curiosity.’” Sindicato Puertorriqueño de Trabajadores,

10 SEIU Local 1996 v. Fortuño,

(1st Cir. 2012) (per

curiam) (quoting New Comm Wireless Servs., Inc. v. SprintCom,

Inc.,

(1st Cir. 2002) (alteration omitted)). In

cases involving trademarks, as here, the likelihood of success

inquiry “plays an even greater role because resolution of the

other three factors will depend, in large part, on whether the

plaintiff is likely to succeed in establishing infringement.”

Peoples Fed. Sav. Bank v. People’s United Bank,

(D. Mass. 2010), aff’d,

(1st Cir. 2012).

“To demonstrate likelihood of success on the merits, plaintiffs

must show more than mere possibility of success – rather, they

must establish a strong likelihood that they will ultimately

prevail.” Sindicato Puertorriqueño,

(citations

omitted) (internal quotation marks omitted).

Granite State has brought claims against NHSMT for unfair

competition, violation of the New Hampshire consumer protection

statute,

-A, and violation of the

Lanham Act,

(a) and (d). While distinct causes

of action, all three require Granite State to show that: (1) its

mark is distinctive; and (2) NHSMT’s alleged infringement is

likely to cause confusion among consumers. See Ligotti v.

Garofalo,

(D.N.H. 2008). Therefore,

Granite State must be able to satisfy both of these elements in

order to establish a likelihood of success on the merits.

11 A. Is Granite State’s Mark Distinctive?

A mark is entitled to trademark protection if it is capable

of functioning as a source identifier of goods. Bos. Duck

Tours, LP v. Super Duck Tours, LLC,

(1st Cir.

2008). Trademark law categorizes marks along a “spectrum of

distinctiveness, based on their capacity to serve such a source-

identifying function.”

(footnote omitted). “A mark is

classified as: (1) generic (least distinctive), (2) descriptive,

(3) suggestive, (4) arbitrary, or (5) fanciful (most

distinctive).”

(citations omitted).

Here, Granite State contends that “Granite State Trade

School” is a descriptive mark. A descriptive mark is one that

“convey[s] an immediate idea of the ingredients, qualities or

characteristics of the goods to which they are attached . . .

[but is] not inherently capable of serving as [a] source-

identifier[] . . . .”

(citations omitted) (internal

quotation marks omitted). Generally, a descriptive mark is not

entitled to trademark protection unless it has become associated

with a single commercial source, such that the phrase is said to

have acquired “secondary meaning.”

(citing

(f)). “A mark is, therefore, considered distinctive (and,

thus, eligible for trademark protection) if it either is

inherently distinctive or exhibits acquired distinctiveness

gained through secondary meaning.”

(quoting Borinquen

12 Biscuit Corp. v. M.V. Trading Corp.,

(1st

Cir. 2006)). Where, as here, the mark is geographically

descriptive, “secondary meaning has been established . . . where

the mark no longer causes the public to associate the goods with

a particular place, but to associate the goods with a particular

source.” Bos. Beer Co. Ltd. P’ship v. Slesar Bros. Brewing Co.,

(1st Cir. 1993).

In assessing whether the phrase “Granite State Trade

School” has acquired secondary meaning, the court considers: (1)

the length and manner of Granite State’s use of the term; (2)

the nature and extent of advertising and promotion of the mark;

(3) the efforts made in the direction of promoting a conscious

connection, in the public’s mind, between the name or mark and a

particular product or venture,

; and (4) Granite

State’s size and prominence, Peoples Fed. Sav. Bank,

. Establishment of secondary meaning entails

“vigorous evidentiary requirements,” and Granite State bears the

burden of proving that its name has acquired secondary meaning.

Bos. Beer Co.,

(citations omitted) (internal

quotation marks omitted).

Though a close call, the available evidence is sufficient

to support a finding that the mark “Granite State Trade School”

has acquired a level of secondary meaning. As an initial

matter, in assessing the length and manner of Granite State’s

13 use of the mark, Granite State has used the term “Granite State

Trade School” widely and continuously since its founding in

2006. For example, Granite State is registered to do business

in New Hampshire under the name “Granite State Trade School,”

and is listed on the state Department of Safety website as an

accredited program for educational instruction. See Pl.’s Exs.

1, 3. Furthermore, Mr. Fusco testified that, until NHSMT began

offering courses in 2012, Granite State essentially operated

without competition, allowing the local trade community to

become familiar with its brand.

The court also considers the nature and extent of Granite

State’s advertising and promotion of its mark. Mr. Fusco

testified that Granite State has spent some $58,000 on radio and

direct mail advertising since 2007. As an exhibit, Granite

State submitted the text of three of its radio advertisements,

all of which repeatedly reference “Granite State Trade School,”

and its URL, www.granitestatetradeschool.com. See Pl.’s Ex. 5.

This evidence demonstrates not only active advertising and

promotion of Granite State’s brand, but an attempt by Granite

State to create a conscious connection between the mark “Granite

State Trade School” and its particular set of services.

Finally, the court considers Granite State’s size and

prominence. The evidence suggested that Granite State is a

small operation. For example, it only offers four live courses,

14 all of which are taught by Mr. Fusco. Nevertheless, Mr. Millard

of NHSMT candidly admitted that members of the trade community

in New Hampshire associate the term “Granite State” with Granite

State Trade School specifically, rather than with a generic

trade school that happens to be located in New Hampshire. This

concession carried significant weight because of Mr. Millard’s

familiarity with the New Hampshire trade school industry. See

Bos. Duck Tours,

(noting that “[t]he touchstone

of the analysis remains the phrase’s primary significance to the

relevant public”). In sum, though a close call, the evidence is

sufficient to conclude that “Granite State Trade School” has

acquired a level of secondary meaning entitling it to trademark

protection.

B. Will NHSMT’s Infringement Likely Cause Confusion?

To establish a likelihood of success on the merits – the

first of four elements required to receive a preliminary

injunction – Granite State must prove not only that its mark is

distinctive, but that NHSMT’s alleged infringement is likely to

cause consumer confusion. In assessing whether NHSMT’s alleged

infringement is likely to cause confusion among consumers, the

court considers the eight so-called “Pignons” factors:4 (1) the

4 See Pignons S.A. de Mecanique de Precision v. Polaroid Corp.,

(1st Cir. 1981).

15 similarity of the marks in question; (2) the similarity of the

services offered; (3) the relationship between the parties’

channels of trade;5 (4) the relationship between the parties’

advertising; (5) the classes of prospective purchasers; (6)

evidence of actual confusion; (7) NHSMT’s intent in adopting its

mark; and (8) the strength of Granite State’s mark. Peoples

Fed. Sav. Bank v. People’s United Bank,

(1st Cir.

2012). “A proper analysis takes cognizance of all eight factors

but assigns no single factor dispositive weight.”

Moreover, it is not enough for Granite State to show a mere

theoretical possibility of confusion; “the allegedly infringing

conduct must create a likelihood of confounding an appreciable

number of reasonably prudent purchasers exercising ordinary

care.” Bos. Duck Tours,

(citations omitted)

(internal quotation marks omitted).

Several of these factors favor Granite State. NHSMT and

Granite State offer similar services and occupy the same channel

of trade in that both train and accredit tradesmen. They also

use similar channels of advertising in that both rely on radio

advertisements, direct mail marketing, and an internet presence.

Likewise, both target the same prospective purchasers, namely

5 A channel of trade refers to the environment in which the consumer acquires the product. For example, there is a distinction between wholesale and retail channels of trade. 16 New Hampshire residents considering a career in the trades.

Finally, as described above, the evidence established that

Granite State’s mark is fairly well-recognized within its

industry.

Nevertheless, the remaining factors heavily favor NHSMT.

As an initial matter, the marks in question are dissimilar.

Granite State argues that NHSMT’s use of www.nhtradeschool.com

and .net is likely to confuse consumers for two reasons. First,

Granite State notes that it perverts NHSMT’s actual name. NHSMT

is not called The New Hampshire Trade School; it is called The

New Hampshire School of Mechanical Trades. Second, Granite

State argues that prospective students view the terms “New

Hampshire” and “Granite State” as interchangeable, such that

they are likely to believe that www.nhtradeschool.com (or .net)

is affiliated with (or is) a website for Granite State, whose

website is located at www.granitestatetradeschool.com.

This is an unusual URL infringement case. Typically, URL

infringement claims are based on one of two scenarios. In the

first scenario, the infringer intentionally registers a URL that

resembles a well-known URL in the hopes that users will

carelessly click on his website (a practice known as

“typosquatting”). See, e.g., World Mkt. Ctr. Venture, LLC v.

Tex. Int’l Prop. Assocs., No. 2:08-cv-01753-RCJ-GWF,

(D. Nev. Oct. 14, 2009) (Las Vegas-based owner of the

17 website www.lasvegasmarket.com sued defendant registrant of the

intentionally misspelled www.lasvagasmarket.com).

In the second scenario, the infringer modifies a URL,

typically by pluralizing or adding a word, such that the

resulting URL falsely suggests a connection between his website

and an established brand. See, e.g., Audi AG v. D’Amato,

(6th Cir. 2006) (auto manufacturer and owner of

www.audi.com sued the unaffiliated user of the URL

www.audisport.com); Paccar Inc. v. Telescan Techs., L.L.C.,

(6th Cir. 2003) (manufacturer of Kenworth and Peterbilt

trucks sued unaffiliated user of URLs including

www.kenworthusedtrucks.com and www.peterbiltnewtrucks.com); PC

Connection, Inc. v. Crabtree,

(D.N.H. 2010)

(electronics manufacturer, PC Connection, sued technology

company that pluralized its name and added a hyphen in its URL,

www.pc-connections.com).

Granite State’s claim is unique. First, the URLs in

question, www.granitestatetradeschool.com and

www.nhtradeschool.com (and .net) are not visually similar.

There is virtually no risk that an internet user would

mistakenly click on one while attempting to click on the other.

Cf. World Mkt. Ctr.,

, at *1

(www.lasvegasmarket.com versus www.lasvagasmarket.com). Second,

the only portion of Granite State’s URL that NHSMT has

18 reproduced in its own URL is the non-descript term “trade

school.” This is distinguishable from a scenario in which an

alleged infringer modifies a reputable brand name to falsely

imply an affiliation, like adding “sport” to Audi, or inserting

the word “used” between Kenworth and trucks.

Ultimately, Granite State’s claim is that the terms “New

Hampshire” and “Granite State” are so inextricably intertwined

in the minds of consumers that NHSMT’s use of the abbreviation

“NH” – not even the full name, New Hampshire - in its URL is

likely to mislead the public. While New Hampshire is proudly

known far and wide as the Granite State, the URL

www.granitestatetradeschool.com is simply not similar enough to

www.nhtradeschool.com (or .net) to risk confounding an

appreciable number of reasonably prudent purchasers exercising

ordinary care. Bos. Duck Tours,

.

Next, Granite State’s evidence of actual confusion was

unpersuasive. As outlined above, this evidence consisted of the

following: (1) Mr. Fusco’s indication that his secretary

receives several calls per week from students trying to reach

NHSMT; (2) Mr. Brulotte’s experience inadvertently registering

for a course at NHSMT; and (3) Ms. Chansky’s data showing a

decline in organic site visits to Granite State’s website. None

of this evidence withstands even a cursory challenge.

19 First, the fact that some students have mistakenly called

Granite State while attempting to contact NHSMT is perhaps

evidence of confusion, but it is not the sort of confusion that

Granite State needs to prove its case. If anything, this is

evidence that some consumers have confused Granite State for

NHSMT, not the other way around, as Granite State has alleged.

What is more, Mr. Fusco did not offer any evidence that the

source of this confusion relates to NHSMT’s use of URLs that are

confusingly similar to Granite State’s URL.

Next, Mr. Brulotte’s experience, while no doubt frustrating

for him, is weak evidence of actual confusion. The actual

confusion inquiry focuses on reasonably prudent purchasers who

exercise ordinary care.

Mr. Brulotte candidly admitted

that he was in a rush, did not pay attention to his internet

search, and carelessly clicked on the top link without giving

the matter further thought.

The evidence established that, unlike Mr. Brulotte, the

vast majority of prospective students cautiously explore their

options. This is particularly true given that the courses that

Granite State and NHSMT offer are expensive and time-intensive.

Mr. Fusco and Mr. Millard both testified that they regularly

meet with prospective students for tours and to answer

questions. In this context, even if the court were to find a

similarity between the URLs in question (which it has not), the

20 risk of confusion would be mitigated by the nature of the

services being offered. See Heartsprings, Inc. v. Heartspring,

Inc.,

(D. Kan. 1996) (noting that,

unlike with cheap, everyday products, consumers exercise a high

degree of care when purchasing expensive educational services,

decreasing the risk of confusion).

Finally, Ms. Chansky’s testimony and data did not

convincingly establish a likelihood of confusion. For ease of

reference, Ms. Chansky’s data is again reproduced here:

Feb.

Apr. 2015 May 2015 June 2015

Organic Search 596 748 595 439 569

% Organic 73% 57% 55% 32% 31%

Referral 121 409 328 329 423

Direct 96 157 154 616 845

Social 4 4 2 2 3

Total 817 1318 1079 1386 1840

As noted above, Ms. Chansky based her conclusion that

consumers were confused by NHSMT’s URL on the fact that Granite

State saw monthly declines in the number of organic site visits

between February and June of 2015. Critically, Ms. Chansky only

focused on the percentage of organic site visits, rather than

the total number of visits.

21 For example, in February, Granite State’s website received

a total of 817 visits. 596, or 73% of these, were organic; 121

were via a referral; 96 were direct; and four were via social

media. In June, the website received 1840 total visits. 569,

or 31% of these, were organic; 423 were via a referral; 845 were

direct; and three were via social media.

What this data shows, in essence, is that during the period

of time when Ms. Chansky claimed that consumers were being

deceived by NHSMT’s implementation of a PPC campaign using the

URL www.nhtradeschool.net, total traffic to Granite State’s

website in fact more than doubled from 817 in February to 1840

in June. While the percentage of organic site visits declined,

the actual number of organic site visits remained largely

unchanged (596, 748, 595, 439, and 569). Simultaneously, the

number of direct and referral visits skyrocketed. In other

words, the percentage-based decline is attributable not to a

decline in organic visitors, but to a spike in other traffic on

the website. In the court’s view, this is not compelling

evidence of actual consumer confusion.6

6 When the court asked Ms. Chansky about this issue during her testimony, she opined that Granite State should expect to see an increase in overall traffic in the spring, as this corresponds to the period of time in which many of its courses are offered. Ms. Chansky, however, was unable to supply historical data supporting this theory.

22 The last of the Pignons factors calls on the court to

assess NHSMT’s intent in using the challenged URLs. Mr. Millard

testified convincingly that NHSMT had no ill intent whatsoever.

He explained that NHSMT began using www.nhtradeschool.com in

2012 in response to feedback from a television production

manager that its then-current URL, www.tnhsmt.com, was difficult

to articulate and convey in spoken advertising. Granite State

did not produce evidence of any kind that NHSMT intended the

URLs to deceive or mislead.

In sum, the court finds that Granite State is unable to

demonstrate a likelihood of consumer confusion. While Granite

State and NHSMT occupy a similar market niche, the marks in

question are dissimilar, there was virtually no evidence of

actual confusion, and NHSMT did not have an intent to deceive.

Because Granite State cannot establish a likelihood of consumer

confusion, an essential element of all three of its claims,

Granite State is unable to demonstrate a likelihood of success

on the merits – the threshold requirement to obtain preliminary

injunctive relief.

II. Irreparable Harm in the Absence of Relief

Even if the court were to overlook Granite State’s

inability to establish a likelihood of success on the merits,

Granite State cannot satisfy its burden of demonstrating

23 irreparable harm in the absence of relief. The obligation of

the movant to demonstrate irreparable harm is an important

prerequisite to obtaining preliminary injunctive relief. Voice

of the Arab World, Inc. v. MDTV Med. News Now, Inc.,

(1st Cir. 2011). It is not enough that the movant

demonstrate the mere possibility of irreparable harm; rather,

the movant must show that, in the absence of a temporary

injunction, irreparable harm is likely. Respect Maine PAC v.

McKee,

(1st Cir. 2010).

A central premise behind Granite State’s seeking of a

preliminary injunction is the fact that NHSMT had just recently

begun using the www.nhtradeschool.com and .net URLs. For

example, Mr. Fusco testified that Granite State’s student

enrollment was “keeping pace” with 2013 and 2014, until April of

2015 when he experienced a sudden drop-off. Mr. Fusco blamed

the drop-off on NHSMT because at approximately that time he

first heard a radio advertisement in which NHSMT directed

listeners to the www.nhtradeschool.com URL. Separately, based

on her data, Ms. Chansky opined that NHSMT had begun its PPC

campaign using www.nhtradeschool.net in February of 2015.

The evidence established that both Mr. Fusco’s and Ms.

Chansky’s assumptions were incorrect. Mr. Millard testified

that NHSMT has used the www.nhtradeschool.com URL consistently

and exclusively in its television, radio, and print advertising

24 since 2012. He also testified that NHSMT began its PPC campaign

using www.nhtradeschool.net in June of 2014, some eight months

earlier than Ms. Chansky had assumed.

In addition to Mr. Fusco’s testimony that enrollment was

consistent until April of 2015, Granite State submitted

financial records showing that in both 2013, and again in 2014,

it achieved record total revenues. See Pl.’s Ex. 7. Given that

NHSMT was using the www.nhtradeschool.com URL during this entire

period, and was using the www.nhtradeschool.net URL for the

latter half of 2014 and into 2015, Granite State simply cannot

demonstrate a risk of irreparable harm in the absence of

preliminary injunctive relief. This is so because the periods

during which NHSMT was allegedly infringing coincided with

periods of record success and productivity for Granite State.

III. Balance of the Equities and the Public Interest

The remaining elements required for preliminary injunctive

relief call upon the court to assess the balance of the equities

among the parties, and the public interest (if any) in the

issuance of an injunction. The balancing of the equities

inquiry requires the court to weigh “the hardship that will

befall the nonmovant if the injunction issues contrasted with

the hardship that will befall the movant if the injunction does

not issue.” Borinquen Biscuit Corp,

. The First

25 Circuit has noted that, of course, “substantial consumer

confusion . . . is not in the public interest.” Mercado-Salinas

v. Bart Enters. Int’l, Ltd.,

(1st Cir. 2011).

For the reasons described above, Granite State has not

established that NHSMT’s use of the www.nhtradeschool.com and

.net URLs has adversely affected it in any way. In fact, the

evidence established not only that NHSMT has been using these

URLs for an extended period of time, but that traffic to Granite

State’s website increased significantly during the relevant

periods. Therefore, Granite State cannot establish that the

balance of the equities tips in its favor. Nor has Granite

State demonstrated substantial consumer confusion that might

implicate the public’s interest in the issuance of an

injunction.

Conclusion

Granite State has not established its right to a

preliminary injunction, relief which the Supreme Court has

characterized as “extraordinary and drastic.” Munaf,

. Therefore, Granite State’s motion for preliminary

injunction (doc. no. 5) is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge August 3, 2015

26 cc: Gary M. Burt, Esq. Thomas J. Pappas, Esq. Frank P. Spinella, Jr., Esq.

27