USDC IN/ND case 3:21-cv-00645-DRL document 78 filed 05/04/23 page 1 of 26

UNITED STATES DISTRICT COURT

Northern District of Indiana
South Bend Division

FOREST RIVER, INC., )

)
Plaintiff, )
) CASE NO.: 3:21-cv-645-DRL-MGG
v. )
)
INTECH TRAILERS, INC., )
) JURY TRIAL DEMAND
Defendant. )

DEFENDANT’S RESPONSE BRIEF IN OPPOSITION TO

PLAINTIFF’S PARTIAL MOTION FOR SUMMARY JUDGEMENT (DE 67)1

Summary of the Response:

The motion should be denied because Forest River has failed both parts of the Rule 56 test:

there are multiple material issues of fact with respect to the critical likelihood of confusion analysis,

and it cannot show that it is entitled to judgement even if there is a likelihood of confusion. More

specifically, there are disputed facts as to the similarity of the marks and of the products, the degree

of care exercised by purchasers, the strength of the Della Terra mark, instances of actual confusion,

and inTech’s intent in adopting and using its Terra mark. Further, even if there is a likelihood of

1
Abbreviations Used:
“DE X at #” refers to a given Docket Entry in this lawsuit, X being the docket number
and # being the page number of the docket entry (not necessarily the pagination used in the
document itself).
“RSMF X” refers to Defendant’s Response to Statement of Material Facts, X being the
item number therein for inTech’s RESPONSE.
“AMF X” refers to Defendant’s Additional Material Facts, X being the item number
therein.

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confusion, since inTech is the senior user of the mark, that likelihood was caused by Forest River’s

junior use of the mark. Also, there is evidence that the Della Terra Indiana trademark registration

is invalid. Finally, Forest River has submitted no evidence or argument at all in support of its

assertion that the Assumption of the Risk affirmative defense does not apply in this case.

Accordingly, Forest River’s motion should be denied.

Material Undisputed Historical Facts:

Neither party was the first to use the term TERRA as a trademark for recreational vehicles

(“RVs”). For example, Fleetwood sold TERRA motor homes starting at least 20 years ago. AMF

101. Between the parties to this lawsuit, inTech was the first to announce to the public a TERRA

travel trailer brand, at the Elkhart Open House trade show back in September, 2017. AMF 105 -

106. Right away, the pre-production marketing of its TERRA trailers helped inTech to sign up new

dealers for its entire RV product line and to increase completed sales of its LUNA model travel

trailers, even back in 2017. AMF 106-8. Since 2017, inTech has not significantly changed either

the TERRA mark, or its font, or the exterior configuration of the trailers to which the mark is

applied. AMF 109.

Starting in sometime in 2018, Forest River began to sell RV trailers under the brand name

DELLA TERRA. AMF 110. However, while Forest River used the DELLA TERRA brand in

advertising, it did not actually apply that mark to the actual trailers under sometime after the 2019

model year began. AMF 111.

Both the East to West business of Forest River (that portion of Forest River selling the

DELLA TERRA brand trailers) and inTech only sell their RV trailers to RV Dealers. AMF 103.

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Dealers control the sale to end users of RVs and decide how the RVs the Dealers buy from Forest

River and inTech will be sold and to whom. AMF 104. Thus, there are two classes of purchasers

of the products in issue.

When Forest River complained to inTech about its use of the TERRA and OASIS brands,

Forest River attempted to defraud inTech by falsely representing that it was still selling OASIS

branded products, when in fact Forest River had ceased such sales years earlier. AMF 113-115.

The Standard of Review of Summary Judgement Motions:

In order to prevail on a motion for summary judgement, the moving party must prove both

1.) that there is no genuine issue as to any material fact, and 2.) that the moving party is entitled to

judgement as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The initial burden of proof of these elements is on the moving party. Celotex, 477 U.S. at

323. It is only after this burden of proof has been met that the opposing party has an obligation to

go beyond the pleadings and designate specific material facts that are in dispute and create a genuine

issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

“Summary judgment will not lie if the dispute about a material fact is “genuine,” that is, if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at

248. To defeat a motion for summary judgment, the opposing party “need only present evidence

from which a jury might return a verdict in his favor.” Id. at 257. In doing so, the non-moving party

need not present evidence in a form that would be admissible at trial in order to avoid summary

judgement. Celotex, 477 U.S. at 324. Further, the non-moving party’s evidence is to be believed

and all justifiable inferences drawn in his favor. Anderson, 477 U.S. at 255; Bombard v. Fort Wayne

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Newspapers, Inc., 92 F. 3d 560, 562 (7th Cir. 1996). The party with the burden of proof on an issue

is not entitled to summary judgment unless the proffered evidence is such that a rational fact finder

could only find for that party. Smith v. Ozmint, 578 F. 3d 246, 250 (4th Cir. 2009).

A fact is "material" if the fact may affect the outcome of the case under applicable law.

Anderson, 477 U.S. at 248. The materiality of a fact in dispute is to be determined by the substantive

law of the particular case. Id. Nonetheless, the Court’s role is not to weigh the evidence and decide

the truth, but to determine if there is a genuine issue for trial. Id.,. at 249. “Credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts

are jury functions, not those of a judge [when he] is ruling on a motion for summary judgement.”

Id., at 255. Further, in providing this guidance with respect to summary judgement, the U.S.

Supreme Court has noted “[n]either do we suggest that the trial courts should act other than with

caution in granting summary judgment or that the trial court may not deny summary judgment in a

case where there is reason to believe that the better course would be to proceed to a full trial.” Id.

In the contest of a trademark infringement case, the key issue is the likelihood of consumer

confusion about the origin of a company’s products, a question of fact, and whether that likelihood

of ,confusion exists can be resolved on summary judgement only “if the evidence is so one-sided that

there can be no doubt about how the question should be answered.” CAE, Inc. v. Clean Air

Engineering, Inc., 267 F. 3d 660, 677 (7th Cir. 2001), citing Door Sys., Inc. v Pro-Line Door Sys.,

Inc., 83 F. 3d 169, 173 (7th Cir. 1996); Packman v. Chicago Tribune Co., 267 F. 3d 628, 637 (7th Cir

2001)(evidence must be “so one-sided”). Indeed, and contrary to Forest River’s assertion that

“courts routinely find trademark infringement on summary judgment” (DE 68 at pages 17-18),

the 7th Circuit Court of Appeals has stated that “a motion for summary judgement in trademark

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infringement cases must be approached with great caution” because the ultimate conclusion on the

likelihood of confusions is a finding of fact. AHP Subsidiary Holding Co. v Stuart Hale Co., 1 F.

3d 611, 616 (7th Cir 1993).

Relevant Substantive Law on Likelihood of Confusion:

The sine qua non of a trademark infringement claim is likelihood of confusion. As noted

recently by this Court:

“the Seventh Circuit uses the “likelihood of confusion” test which requires analysis
of seven factors: ‘(1) the similarity between the marks in appearance and suggestion;
(2) the similarity of the products; (3) the area and manner of concurrent use; (4) the
degree and care likely to be exercised by consumers; (5) the strength of the plaintiff's
mark; (6) any actual confusion; and (7) the intent of the defendant to ‘palm off’ his
product as that of another.’ Sorensen v. WD-40 Co., 792 F.3d 712, 726 (7th Cir.
2015); AutoZone, Inc., 543 F.3d at 929. ‘No single factor is dispositive, but [the
Circuit has] said that three are especially important: the similarity of the marks, the
intent of the defendant, and evidence of actual confusion.’ Sorensen, 792 F.3d at 726.
Furthermore, whether consumers are likely to be confused about a product's origin
is ultimately a question of fact which is not appropriate for summary judgment unless
the evidence is so one-sided that there is no doubt as to the answer. AutoZone, Inc.,
543 F.3d at 929.”

Furrion Property Holding Limited & Furrion Limited, v. Way Interglobal Network, LLC, 2021 WL

4263757, at *6 (N.D. Ind. Sept. 20, 2021).

As to the first factor, this Court has also noted that:

“[t]rademarks are confusingly similar if they are similar in sound, appearance,

meaning, or connotation. CFM Majestic, Inc. v. NHC, Inc., 93 F.Supp.2d 942, 951
(N.D. Ind. 2000). In deciding whether two marks are similar, comparison is made ‘in
light of what happens in the marketplace, and not merely by looking at the two marks
side-by-side.’ Meridian Mut. Ins. v. Meridian Ins. Group, 128 F.3d at 1115; see also
AM Gen. Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 825 (7th Cir.2002)”

Lincoln Fin. Advisors Corp. v. Sagepoint Fin. Inc., 2009 WL 928993, at *7 (N.D. Ind. Apr. 2, 2009).

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“The test is not whether the public would confuse the marks, but whether the viewer of an accused

mark would be likely to associate the product . . . with which it is connected with the source of

products . . . with which an earlier mark is connected. The court should therefore consider whether

the customer would believe that the trademark owner sponsored, endorsed or was otherwise affiliated

with the product.” AutoZone, Inc. v Strick, 543 F. 3d 923, 930 (7th Cir. 2008). In doing so, each of

the marks must be viewed as a whole, “not from its elements separated and considered in detail.”

Id., quoting Estate of Beckwith, Inc. v. Comm’r of Patents, 250 U.S. 538, 545-546 (1920).

The second factor also focuses on whether in the minds of consumers in the marketplace a

single producer is likely to put out both goods. McGraw-Edison Co. v Walt Disney Prods. 787 F.

2d 1163, 1169 (7th Cir. 1986); Dwyer Instruments Inc. v. Sensocon Inc., 2012 WL 3207254, at *13

(N.D. Ind. Mar. 23, 2012).

This Court in Dwyer went on to note with respect to the fourth factor that:

“[t]he degree of care factor seeks to distinguish how likely the relevant group of
consumers is to distinguish between different products. S Indus., Inc. v. JL Audio,
Inc., 29 F. Supp.2d 878, 892 (N.D. Ill. 1998). Where the cost of the item is high,
courts assume that purchasers are more likely to be discriminating. Maxim's Ltd. v.
Badonsky, 772 F.2d 388, 393 [ 227 USPQ 316] (7th Cir. 1985). However, the degree
of customer care does not depend solely on price. See Nike, Inc. v. Just Did It
Enters., 6 F.3d 1225, 1230 [ 28 USPQ2d 1385] (7th Cir. 1993) (stating that a
reasonable jury could conclude that customers take care when purchasing clothing
ranging from $19.95 to $39.95).”

Dwyer, 2012 WL 3207254, at *15.

The fifth factor, “strength of the mark.” refers to the tendency of the mark to identify products

as emanating from a particular source. CAE, Inc., 267 F. 3d at 684.

As to the sixth factor, actual confusion, survey evidence is sometimes used as circumstantial

evidence to suggest actual confusion is likely. However, evidence of shortcomings in the survey

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results go to the proper weight of the survey, and should be evaluated by the trier of fact, unless the

proffered survey is so flawed as to be inadmissible at all. AHP Subsidiary Holding Co. v. Stuart

Hale Co., 1 F.3d 611, 618 (7th Cir. 1993).

However, it is important to keep the likelihood of confusion analysis in its proper context.

In order to prevail on a trademark infringement claim, the plaintiff must establish that the defendant's

use of the mark is likely to cause consumer confusion. H–D Michigan, Inc. v. Top Quality Serv., Inc.,

496 F.3d 755, 759 (7th Cir.2007); Packman v. Chicago Tribune Co., 267 F.3d 628, 638 (7th

Cir.2001); Vision Ctr. Nw., Inc. v. Vision Value, LLC, 673 F. Supp. 2d 679, 683–84 (N.D. Ind.

2009). Axiomatically, if the defendant was the first user of the accused trademark, the

defendant’s use cannot have caused the likelihood of consumer confusion. It is instead, then,

the plaintiff, as the junior user, who caused the likelihood of consumer confusion.

In that regard, this Court has also noted that:

“[w]here two parties each assert rights in the same mark, ‘[t]he party who first
appropriates the mark through use ... acquires superior rights to it.’ Johnny Blastoff,
Inc. v. Los Angeles Rams Football Co., 188 F.3d 427, 434 (7th Cir.1999); see also
United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 100, 39 S.Ct. 48, 63 L.Ed.
141 (1918) (‘[T]he general rule is that, as between conflicting claimants to the right
to use the same mark, priority of appropriation determines the question.’).”

Agler v. Westheimer Corp., 143 F. Supp. 3d 766, 770 (N.D. Ind. 2015),

In this regard, the priority of trademark rights, i.e., the party recognized as the “first user,”

must “show first, adoption, and second, “use in a way sufficiently public to identify or distinguish

the marked goods in an appropriate segment of the public mind as those of [the adopter of the

mark].” New West, 595 F.2d at 1200. The party who first appropriates the mark through use, and for

whom the mark serves as a designation of source, acquires superior rights to it. See Zazú, 979 F.2d

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at 503–04. Evidence of actual sales is not necessary to establish ownership. See New West, 595 F.2d

at 1200.” Johnny Blastoff, Inc., 188 F.3d at 433–34.

Analysis of the Summary Judgement Issues:

1. Similarity of the Marks:

Forest River asserts that the marks are “nearly identical.” DE 68 at 8. inTech asserts that the

marks are substantially different. This is a genuine issue of material fact. RSMF 51, 55, 56

For example, even in comparing the mountain graphics shown in DE 69 Item No. 54 and 55,

it is immediately clear that the Forest River logo “consists of a stylized mountain above a

horizontally oriented crescent” DE 25-3 (Forest River’s own U.S. trademark registration for that

logo, based upon Forest River’s own statement in its registration application - Exhibit E hereto).

Also, Forest River has advertised that its logo “shows two mountain range types with a winding road

between. The mountain range on the left is snow capped (like the Rockies) and the mountain range

on the right is more temperate (like the Appalachian Mountains).” This is how Forest River

expressly wants its customers to understand that logo. Exhibit F hereto (previously labeled Ex. 23

in the Espiritu and Rees Depositions). Further, as shown in DE 25 at 34, DE 25-3 and DE 68 at 9,

the two mountain portions used by Forest River are shaded differently, one significantly darker than

the other.

In contrast, the inTech mountain graphic defines three distinct peaks as separate mountains,

with no road (intermediate the mountains or otherwise), no crescent base (using a completely open

bottom pattern with no base, in fact), and does so with and angular graphic pattern, rather than

curved lines, of a consistent dark color. DE 69 Item No. 50, 55-56. Forest River’s attempt on DE

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68 at 14 to equate the mountain logos by dissecting out the top line profile fails both as a matter of

fact and law. The red line shape attributed to the Forest River profile is not factually accurate in that

it establishes sharp angular points on the mountain peaks instead of more curved peaks and replaces

the curved crescent portions of the base with straight portions. Also, as a matter of law, when

comparing the marks, the marks are to be viewed as a whole and not so dissected.

In addition, the Forest River and inTech mountain logos/graphics are, as Forest River admits

on DE 68 at 8, actually used and featured to consumers in the market alongside of the DELLA

TERRA and TERRA word marks, respectively. The word marks are not visually identical, Forest

River’s mark having an extra word DELLA which has an additional connotation and pronunciation.

In actual practice, purchasers of DELLA TERRA products do not abbreviate the mark to either

DELLA or TERRA when describing the product, thus phonetically reinforcing the visual distinction

in practice. AMF 118. Further, as used in the market, the word marks have a different connotation.

Forest River focuses customer attention on the “of the Earth” meaning because of its association with

camping and the outdoors. RSMF 15. In contrast, inTech and its dealers market the TERRA

products in close association with its LUNA and SOL products, creating an astrometric connotation.

AMF 119. More importantly, since the consumer sees the logos and word marks as a set on both

parties’ products, the distinguishing features of the mountain logos decrease the likelihood that the

word marks as applied to the products would ever cause confusion. After all, as a matter of law, the

test is not that consumers are likely to be confused between the marks, but rather that consumers are

likely to be confused as to source, affiliation, etc. of the product.

Also, in the marketplace each party puts it own business name alongside of the mountain

logos and word marks when the marks are on the products and on advertising. AMF 120. The

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EAST TO WEST name and the INTECH name are completely different visually, phonetically, and

in meaning. This additional layering of brands combined with the trademarks in issue create a

composite trademark/logo impression with consumers that makes the likelihood of confusion with

respect to the products diminish substantially.

In addition, in the market place, consumers are used to seeing a wide variety of travel trailers

and other RVs who use the same words as part of the brand name. AMF 121. Thus, it is reasonable

to expect that consumers have gotten used to distinguishing between brands that are similar in that

manner. Similarly, many RVs are made with a variety of different mountain graphics, AMF 122,

and consumers would necessarily gotten used to seeing that, noticing the differences between them.

This ability to distinguish is helped by the fact that in the marketplace, consumers typically purchase

the travel trailer with the close assistance of a knowledgeable dealer. AMF 123 .

Finally, Forest River makes much of the fact that the DELLA TERRA and TERRA marks

use a similar font, but that does not help their cause, since to the extent that the fonts are similar, it

is Forest River who adopted the font AFTER inTech. AMF 124. However, that fact is also in

dispute. RSMF 70.

2. Similarity of the Products:

Forest River asserts that the composite marks and logos are used “on the exact same kind of

product,” i.e. travel trailers. DE 68 at 23. inTech asserts that the respective products are

substantially different, one being an entry level, “stick & tin” travel trailer, and the other being a

specialty trailer. RSMF 48 and 58. This “similarity” is a genuine issue of material fact.

Forest River’s argument is based upon the height, weight, towability, and some product

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features, and the fact that both products are sold through some of the same dealers. DE 68 at 23.

However, by that same form of analysis, Forest River’s DELLA TERRA product is the exact same

product as Fleetwood’s pre-existing TERRA motor home, i.e., they are both RVs. Forest River

accepted and assumed the risk of any “likelihood of confusion” created there when it adopted the

DELLA TERRA brand in the first place, AMF 125, because Fleetwood’s TERRA RVs were in a

different market segment. AMF 126.

In that regard, Forest River is correct: the RV market has many distinct market segments, and

consumers have come to distinguish between those segments, especially through the help of dealers

who physically separate entry level, stick & tin products, from specialty trailers on their lots, build

brand awareness, and who provide substantial distinguishing manufacturer and product information

to potential customers. AMF 127 - 8 and RSMF 42. Further, inTech has gone out of its way to make

its LUNA/SOL/TERRA product lines bear a common family resemblance, the “tilt forward” front

end with a predominant window, which is completely visually distinct from any other travel trailers,

even at a substantial distance and even without seeing any word branding or logos on the products.

AMF 129. Seeing such different exterior appearances in DELLA TERRA versus TERRA products,

and seeing in the market the distinctive family appearance of the full inTech travel line, and

especially with dealer sales persons physically at their side to point out the many product and quality

level differences, AMF 130, inTech contends that it is highly unlikely that consumers would believe

the same company was the source of both types of products. Thus, there is a genuine and material

issue of fact as to this factor as well.

3. Similarity in the Area and Manner of Concurrent Use:

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Forest River asserts that each party sells its products “throughout the United States.” DE 68

at 24. The evidence of record does not bear that out, because even Forest River admits that it does

not have dealers or customers in certain areas. RSMF 34; DE 69-8 at ¶3 (“nearly every state”);

However, since each party aspires to be nationwide and hopefully that will happen someday, inTech

agrees that the Court should assume that to be the case now.

Further, Forest River asserts that each party uses the same channels of trade to market its

products: RV dealerships, some of which sell both DELLA TERRA and TERRA brand products at

the same time and locations. inTech agrees, and, in fact, during this lawsuit inTech obtained

deposition testimony of three of those dealers who sold the parties products concurrently. AMF 131.

However, the issue of fact here is not that such overlap occurs, but rather the effect of such

overlap. inTech contends that by having its respective products sold ONLY through these highly

knowledgeable RV dealers, it is the dealers who actually REDUCE the likelihood of confusion. The

dealers display the respective products at different locations, provide substantial information to

consumers about the product differences, and provide extra time for prospective purchasers to

become completely familiar with teach type of product. AMF 127 - 8 and 130; RSFM 42. As a

result, inTech contends that consumers are more likely to know exactly who the source of the

products are even long before the purchasing decision is made. In contrast, Forest River paints with

too broad a brush, blithely assuming that because the channels of trade are the same that necessarily

causes confusion. In this case, inTech contends that the actual nature of the dealership marketplace

for RV products does the opposite. RSMF 39 - 42, 48, and 58.

4. The Degree of Care Likely to be Exercised by Consumers:

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Forest River asserts that the level of care likely to be exercised by consumers is very low

(“some do absolutely no research whatsoever prior to making a purchase” - DE 68 at 25). inTech

asserts that the level of care exercised by consumers is very high. This is a key genuine issue of

material fact in this particular lawsuit, especially given the Tens of Thousands of Dollars spent for

even the least costly of the branded products. RSMF 59; Exhibit N, page 28, lines 5 - 12.

In support of its assertion, Forest River relies upon a statement by Mr. Hofert which was

taken out of context. Mr. Hofert did NOT say that some purchasers do absolutely no research

whatsoever prior to making a purchase. What he did say was that some people COME IN to his

dealership having done no research and “from time to time” they may walk out with a travel trailer.

However, he goes on to explain in detail how he educates them on travel trailers, providing them

with substantial and sufficient information. RSMF 42. Also, the fact that a consumer does not

research an RV brand prior to coming into an RV dealer does not mean that while at that dealership

they are not very careful and considered in their analysis, especially given the very large price tag

on these products. Even the example Mr. Hofert gave, about a person who was going camping and

did not want to sleep in a tent, evidences a person familiar with tents enough not to want one and

familiar with camping enough to know that an RV is a step up from a tent. Such a person has

already done some thinking about the process and may have a list of questions for a dealer which

results in a fairly informed purchase decision by the time the sale is made, even if done in one day.

Further, no information was provided by or sought from Mr. Hofert by Forest River about the

relative education and intelligence level of any such purchaser who walked and bought the same day.

Without that information, Forest River can only speculate that such persons were not careful.

In addition, the example Mr. Hofert gave should be considered in its statistical context. In

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the past three years he has sold 550-600 vehicles per year. AMF 132. However, the instances of

people coming in with no research and wanting an RV right now is 3-5 times per year, significantly

less than even 1% of his annual sales. AMF 133. Further, looking closely at the example Mr. Hofert

gave, where a person said “I have a camping trip this weekend and I’m not sleeping in a tent,” the

prospective purchaser is expressing literal indifference to trailer brands (if not outright consumer

negligence in waiting to the last minute to make a monetarily substantial purchase). RSMF 59;

Exhibit N, page 28, lines 5 - 12.

In fact, Forest River’s contention defies both common sense and its own marketing efforts.

As noted above, courts have seen that consumers can be considered careful when purchasing clothing

ranging from $19.95 to $39.95. How much more so would a consumer reasonably be when

purchasing a product thousands of times that price? It is, after all the “reasonable” consumer we are

to be considering, using the reasonable practices of such consumers. Further, if significant consumer

research was not the norm, why would Forest River be spending so much time and effort putting

information on the market about its products for consumer research, as opposed to just letting

customers walk in and out of a dealership? RSFM 20-24, and 26 (note Forest River’s assertions).

In contrast, inTech has introduced substantial evidence that in the normal situation, and

especially after COVID, the usual, reasonable and prudent consumer of travel trailers of these types

obtained a significant amount of advance research, and spent considerable time making the purchase

decision. AMF 123, 127-128, 130; RSMF 42. inTech’s contention in this regard is consistent with

findings of this Court in similar consumer situations. For example, “consumers who buy or lease

a vehicle that sells for more than $16,000.00—or, in the case of the H2, more than $50,000.00—are

likely to use a very high degree of care, especially since they are likely to make their purchases from

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well-branded dealerships.” AM Gen. Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 828 (7th Cir.

2002)(affirming the judgement and adopting the memorandum of the lower court, Judge Rober J.

Miller, Jr. of the N.D. Ind.).

Also, Forest River’s contention of so low a level of consumer care appears to be directed

toward a fundamental misunderstanding of the applicable substantive law in this regard. Contrary

to Forest River’s assertion on DE 68 at 25, the trademark law protects against the likelihood of

confusion only in the minds of “reasonable and prudent consumers.” Platinum Home Mortg. Corp.

v. Platinum Fin. Grp., Inc., 149 F.3d 722, 729 (7th Cir. 1998). It has long been the law in this

judicial circuit that: “A new competitor is not held to the obligations of an insurer against all possible

confusion. He is not obligated to protect the negligent and inattentive purchaser from confusion

resulting from indifference. [citation omitted]. It has been said that he is not required to make the

market ‘foolproof.’” Life Savers Corp. v. Curtiss Candy Co., 182 F.2d 4, 8 (7th Cir. 1950),

abrogated on other grounds by Qualitex Co. v. Jacobson Prod. Co., 514 U.S. 159, 115 S. Ct. 1300,

131 L. Ed. 2d 248 (1995)(color not necessarily functional). Further, ‘[t]he plaintiff, in marketing its

goods, is not bound to make them ‘foolproof‘ so that no one can make a mistake in regard thereto.”

Quaker Oats Co. v. Gen. Mills, 134 F.2d 429, 432 (7th Cir. 1943). More recently, our Court of

Appeals has reminded that the test of likelihood of confusion is not the mere possibility of confusion

because “[m]any consumers are ignorant or inattentive, so some are bound to misunderstand no

matter how careful a producer is.” Aug. Storck K.G. v. Nabisco, Inc., 59 F.3d 616, 618 (7th Cir.

1995). Accordingly, such inattentive and careless consumers (those “least sophisticated consumers”

of Forest River’s contention) are NOT the “lens” by which we must judge the actions of “reasonable

and prudent consumers.” Therefore, even if there are such persons out there who come in empty

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headed to Mr. Hofert, and even assuming he gave them no education whatsoever in their purchasing

decision, that fact does not help entitle Forest River to the requisite “judgement as a matter of law”

as to the likelihood of confusion.

On DE 68 at 25, Forest River’s reliance upon a quotation doubly out of context from Nat'l

Council of Young Men's Christian Associations of U.S. v. Hum. Kinetics Publishers, Inc., No. 05 C

5034, 2006 WL 752950, at *5 (N.D. Ill. Mar. 15, 2006) is misplaced. That case dealt with a mixed

buyer class. As explained by the cited reference therein:

“[t]he degree of caution used by these ordinary consumers (or “reasonably prudent
buyers,” as they are often called) depends on the relevant buying class. That is, some
buyer classes, for example, professional buyers, or consumers of very expensive
goods, will be held to a higher standard of care than others. Where the buyer class
“consists of both professional buyers and consumers then the issue will center on the
consumers, for confusion within the lowest stratum of ‘reasonably prudent buyers'
may give rise to liability even if professional buyers in the market are not confused.”
Worthington Foods, Inc. v. Kellogg Co., 732 F.Supp. 1417, 1448 (S.D.Ohio 1990).
See 2 McCarthy, Trademarks and Unfair Competition at § 23:28 (if “the relevant
buyer market consists of both discriminating and casual purchasers, the court must
give consideration to likely confusion of the casual, ordinary buyers.”). Thus, when
a buyer class is mixed, the standard of care to be exercised by the reasonably prudent
purchaser will be equal to that of the least sophisticated consumer in the class.”

Ford Motor Co. v. Summit Motor Prod., Inc., 930 F.2d 277, 293 (3d Cir. 1991).

In the present lawsuit, we also have two classes of buyers, RV dealers and end user

consumers who buy from the RV dealers. Thus, the appropriate level of care to examine is that of

the end user consumers, but only “reasonable and prudent” end user consumers. In contrast, Forest

River’s argument, that we should apply a standard of the “least sophisticated consumer” under the

Ford reasoning to those within a given class, was specifically rejected by at least one court of

appeals. Cohn v. Petsmart, Inc., 281 F.3d 837, 843 (9th Cir. 2002).

Forest River also attempts to buttress its standard of care argument by reference to its survey

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evidence. However, as discussed in detail below, that survey is flawed for several reasons, including

by not sufficiently resembling the purchasing decisions in the marketplace, by using flawed

methodology, and by serious computational errors. There are genuine issues of material fact as to

the conclusions to be drawn and credibility weight ascribed to that survey. RSMF 92.

5. Strength of the Plaintiff’s Mark:

inTech agrees that “the ‘strength’ of a trademark refers to . . . its propensity to identify the

products or services sold as emanating from a particular source.” DE 68 at 26-27. Forest River

asserts that its marks have the strength of at least being suggestive marks. DE 68 at 27. With respect

to the DELLA TERRA mark, inTech does not dispute that. Clearly, DELLA TERRA is not entitled

to the strength of an arbitrary mark (such as EXXON) since others have used or sought to use the

mark DELLA TERRA on a variety of goods. AMF 134. Further, the “suggestion” of “DELLA

TERRA meaning ‘of the earth’ in Italian” was widely promoted by Forest River, AMF 135, and, thus

associated with camping by consumers in the market. However, that “strength” applies to the

combined mark as a whole and not separately as one of its components, such as TERRA. Further,

that “strength” applies only as to the actual goods upon which Forest River is using the combined

DELLA TERRA mark. Since both Fleetwood and inTech were using the TERRA mark in

connection with other types of RVs prior to Forest River, the propensity for the TERRA portion of

DELLA TERRA to identify RVs as emanating from a particular source is at least severely limited.

Accordingly, inTech does not dispute that Forest River’s DELLA TERRA mark is within the middle

ground of the spectrum of strength.

However, inTech does not agree that Forest River’s mountain logo is distinctive as a

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trademark in actual commerce at all. The registrations indicate that the logo is capable of being

distinctive, e.g., 15 U.S.C. §11052(e) and (f), but that does not mean the logo is in fact distinctive

as actually used. In this case, there are a large number of mountain logos/graphics commonly used

on travel trailers. AMF 122. As a result, it is unlikely that consumers are likely to associate any one

mountain logo with Forest River, and it should be expected that the public can easily distinguish

slight differences in the marks, even if the goods are related. HospiceCare, Inc. v. BJM Hospice,

L.L.C., 2011 WL 13244559, at *1 (W.D. Wis. Sept. 27, 2011)(the court addressing the effect of

numerous tree logos in the market), citing 2 J. Thomas McCarthy, McCarthy on Trademarks &

Unfair Competition § 11:85 (4th ed. 2009) (“A mark that is hemmed in on all sides by similar marks

on similar goods or services cannot be very ‘distinctive.’ It is merely one of a crowd of similar

marks.”). In fact, the mountain logos on travel trailers are seen by purchasers merely as decorations

and graphics. AMF 122. Purchasers do not mention or refer to the products by use of the mountain

logo when buying the goods. AMF 136.

Forest River argues that its substantial use of the marks and volume of sales demonstrate their

strength. DE 68 at 28. However, that use has always been of the marks in combination with some

other mark. In the case of its mountain logo, for example, it has always been used adjacent to the

EAST TO WEST name. AMF 137. As a result, in the marketplace the mountain logo and the

phrase East to West have become one, inseparable mark. inTech would agree that such an

inseparable mark is distinctive, but that mark is all the more dissimilar from the TERRA and

inTech’s mountain logo.

6. Any Actual Confusion:

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Forest River contends there is evidence of actual confusion by direct and circumstantial

survey evidence. DE 68 at 30-31. inTech contends the direct evidence proffered by Forest River

does not show actual confusion, that the extensive concurrent use of the respective marks in the RV

market without any other evidence of actual confusion is an important factor, and that Forest River’s

survey used a flawed methodology, did not sufficiently approximate market conditions, and is based

upon significant computational errors. Accordingly, the evidentiary weight of that survey should be

assessed by the jury. These are genuine issues of material fact. RSMF 20 - 28, 87 - 89, 92, 94, and

97 - 98.

More specifically, and contrary to Forest River’s representation to the Court, Mr. Wynn was

not engaged in a conversation with a prospective customer. In fact, he had no idea who those

persons were and why they were in line and present at the trade show. RSMF 87. There are a

number of persons who attend trade shows who are not prospective customers. Id. Mr. Wynn did

not characterize the person he spoke to as “a retail customer” until after he was told to write that by

his boss. Id. The person speaking to Mr. Wynn said nothing at all about TERRA or DELLA

TERRA, but was asking about a connection between East to West and inTech as companies. AMF

88. There is no way to know why that question was asked or if the question arose because of the

respective trademarks. No other specific instance of actual confusion has been shown.

Further, Forest River’s “initial interest confusion” evidence is purely speculative. The facts

are that on 851 occasions persons doing a GOOGLE search for DELLA TERRA RVs did have an

inTech TERRA ad pop up on their computer screens. RSMF 97. Of those 851 instances, on 11

occasions (less that 1.3% of the time) the computer users then clicked on the TERRA ad to see what

it was. Id. No evidence was submitted by Forest River to show that confusion or misunderstanding

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of any sort caused the inTech ads to be clicked on. Assuming in the first place, that the computer

users were all prospective customers (as opposed, for example, to Forest River employees checking

out inTech ads as a competitor, e.g., Exhibit R, page 31, line 22 – page 32, line 10, and page 70, line

4 – page 71, line 1.), there is no reason to believe that the prospective consumer was not merely

attracted to the advertisement for curiosity or additional information having then noticed yet another

brand of travel trailer.

As for the Franklyn survey, inTech reserves objection to its admissibility at trial. While N.D.

Ind. L.R. 56-1(f) indicates that disputes about evidence must be raised in the briefs, this Court has

previously established a different briefing schedule for admissibility of trial evidence. DE 59.

Accordingly, for purposes of this partial motion for summary judgement only, inTech assumes that

survey is admissible, and instead challenges its credibility and the weight to be given it.

inTech’s expert witness, Thomas Maronick, has pointed out in detail the methodology flaws

of the Franklyn survey from the standpoint of other experts in the field, such that the methodology

of the Franklyn survey cannot be reasonably relied upon to produce meaningful conclusions. RSMF

92, part a. Further, there is no doubt that the fast paced computer survey format of the Franklyn

survey does not even come close to approximating the time spent by and resources available to

typical consumers in the marketplace. RSFM 92, part b; AMF 123, 127 - 8, and 130. If the survey

methods do not approximate the actual marketplace conditions, the survey can receive no evidentiary

weight. THOIP v Walt Disney Co., 690 F. Supp. 2d 218, 231 (S.D. N.Y. 2010). Also, the exhibits

shown to respondents in the Franklyn survey do not sufficiently resemble the actual inTech products

to which the accused marks are applied. For example, the inTech name has been blocked out or

obscured from the photo, while the East to West name was not blocked out. AMF 92, part c. Seeing

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the inTech products as they actually appear in the marketplace, with inTech’s name thereon, would

undoubtedly help reduce the possibility of confusion.

Most disturbing, however, are the “computational” errors. On cross-examination at his

deposition, Mr. Franklyn admitted that the results of any respondent who took less than 1/3 the

MEDIAN time to complete the survey would be excluded from his analysis. AMF 92, part d.

Looking at the raw data for the survey we see that there were at least 1519 survey respondents. Id..

However, only the results of only 332 respondents (less than 22%) were used to compile the survey

results. RSMF 92, part d. The survey was designed to require respondents to articulate specifically

why they believed there was some relationship and/or affiliation between the products they were

shown. DE 69-11 at 29 - 31. If the respondent saw no relationship, he/she was free to end his/her

time in the survey. Id. Obviously, if a respondent has to twice write in detail his/her reasons, he/she

is going to need significantly more time to complete the survey, thus significantly increasing the

MEDIAN (as opposed to average time) time needed for survey completion. Thus, all those persons

who found no confusion or saw no relationship between the products are those most likely to be

automatically dropped from the survey computation. We have no idea from the report or data

provided with the Franklyn survey how many unconfused persons were so dropped of the 78% of

respondents whose results were not counted. This is material to the legal issues because if even 22%

of the total respondents completed the survey quickly and had no confusion, then the confusion

percentages found in the Franklyn survey should be cut in half, and his conclusions about likelihood

of confusion seriously questioned. If 44% of the total respondents were so dropped, then by his own

admission, Professor Franklyn’s results may be completely meaningless. RSMF 92, part 9. The fact

that Professor Franklyn designed the survey in this way, combined with his evasiveness and

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obfuscatory conduct in deposition testimony, AMF 138., should be taken into account by the jury

to decide if this survey was substantially biased and should be given little or no evidentiary weight.

7. Intent of the Defendant to Palm Off:

Finally, there are clearly a genuine issues of fact as to this factor. RSMF 48, 49, 62, 63, 69,

60, and 76. Briefly, since inTech adopted the TERRA mark and its font prior to Forest River, it

axiomatically cannot have been trying to palm off its products against the then non-existent Forest

River products. inTech did receive a demand letter from Forest River, but that letter demonstrated

Forest River’s intent to defraud inTech by falsely representing that it was still selling the OASIS

branded products. AMF 114 - 115; RSMF 62. No credibility can be given to a competitor’s

demands in such instances, and no ill intent can be inferred by refusing such demands. Finally,

inTech’s counsel did warn it about problems in the future, but that had nothing to do with the

DELLA TERRA products. RSMF 63.

8. Defendant did not Cause the Likelihood of Confusion:

With respect to Forest River, inTech was the senior user of both the word TERRA and the

font used for that mark. AMF 105 - 108, 110. Doing so cannot “cause” a likelihood of confusion

because it came before Forest River’s use of DELLA TERRA and the font used for that mark. In

that regard, inTech’s use of the TERRA mark beginning right away in September of 2017 and

extending into 2020 was sufficient to

1. alert the RV dealer market at the most prominent trade show of the RV industry

that it was adopting the TERRA trademark for a uniquely shaped specialty

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RV which would be produced in the near future and that it was offered for

sale as a practical matter now,

2. convince multiple RV dealers to sign up as inTech product line dealers even years

before being able to receive actual TERRA products,

3. convince multiple RV dealers to immediately purchase for immediate delivery the

related LUNA branded products, as part of the same family of RV products

as the TERRA products, and

4. alert its competitors, including Forest River, that it was coming out with the

TERRA product even before those products were shipped to consumers.

RSMF 69.

inTech’s use of the TERRA mark and the unique shape of the products to which that mark was

applied has not changed since September 2017. AMF 105. Thus, even without completed sales until

late 2020, inTech immediately and consistently used the TERRA mark starting in 2017 (and prior

to Forest River) in a way sufficiently public to identify or distinguish the TERRA marked goods in

an appropriate segment of the public mind as those of inTech.

Therefore, even if there is a likelihood of confusion, Forest River is not entitled to judgement

as a matter of law because it fails to show that the likelihood of confusion was caused by inTech.

9. Forest River’s Indiana Registration for DELLA TERRA is Invalid:

Forest River seeks judgment in part on the basis of Indiana Code §24-2-1-13. However,

Forest River is not entitled to judgement of infringement of its Indiana trademark registration for

DELLA TERRA if that registration is invalid. Under Indiana law, to be eligible for registration a

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mark must be “in use,” meaning the “mark is placed in any manner on the good.” I.C. §24-2-1-2(9)

and (11)(A)(i)(the exceptions to placement directly on the goods being inapplicable in this case).

An Indiana trademark registration may be cancelled if that registration was obtained improperly or

fraudulently. I.C. §24-2-1-10(3)(C) and (D).

To obtain its Indiana trademark registration for DELLA TERRA, Forest River represented

as a fact that the DELLA TERRA mark was in use on the goods on March 30, 2018. DE 1-1. An

accurate representation of first use is statutorily required in order to obtain a registration. I.C. §24-2-

1-4(a)(3). However, while Forest River may have used the mark DELLA TERRA in connection

with advertisements for its travel trailers, it did not actually use that mark on those travel trailers

until the 2019 “model year,” and perhaps as late as November 2018. AMF 110; RSMF 6, 8 - 9 and

17 - 19. Thus, the representation of first use made to obtain the registration was false, and Forest

River knew or should have known of that falsity at the time. Under these circumstances, Forest

River’s intent to deceive should be inferred or presumed, especially since it obtained the registration

after accusing inTech of trademark infringement (DE 1-1) and clearly with the intent of suing

inTech, and in light of its track record of lying to inTech about continued use of OASIS.

Under Indiana law, fraud exists if it is shown that “(1) a material misrepresentation of past

or existing fact which (2) was untrue, (3) was made with knowledge of or in reckless ignorance of

its falsity, (4) was made with the intent to deceive, (5) was rightfully relied upon by the complaining

party, and (6) which proximately caused the injury or damage complained of.” Kesling v. Hubler

Nissan, Inc., 997 N.E.2d 327, 335 (Ind. 2013).

Thus, at the very least, Forest River obtained the DELLA TERRA registration improperly

and cannot be entitled to judgement of infringement of this Indiana trademark registration.

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10. The Assumption of the Risk Affirmative Defense still Stands:

Forest River asserts as a final footnote on the last page of its Memorandum that it is entitled

to summary judgement against inTech’s affirmative defense of assumption of the risk “because it

is not only unsupported by the record in this case, but is not an actual recognized defense to claims

of trademark infringement.” DE 68 at 32. However, that bald, conclusory statement is clearly

insufficient to meet the burden of proof and particularity requirements of summary judgement under

Fed. R. Civ. P. 56. Accordingly, inTech has no obligation to respond in detail. Suffice to say, that

even if Forest River could prevail on the likelihood of confusion issues, the relief it has sought, a

permanent injunction and a separate hearing on damages, is unavailable until that affirmative defense

is tried.

Conclusion:

Forest River has not met its burden of proofs as to the summary judgement issues, and its

motion must be denied.

Dated: May 4, 2023 Respectfully submitted,

s/Ryan M. Fountain
_____________________________
Ryan M. Fountain (Attorney No 8544-71)
420 Lincoln Way West
Mishawaka, Indiana 46544
Tel.: 574-258-9296
Fax: 574-247-1237
Email: [email protected]
Attorney for Defendant

Certificate of Service

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 USDC IN/ND case 3:21-cv-00645-DRL document 78 filed 05/04/23 page 26 of 26

I certify that, on May 4, 2023, I electronically filed the foregoing document with the Clerk of the
Court using CM/ECF system, which sent notification of such filing to all of the parties through at
least the following counsel of record:

Tracy N. Betz at [email protected]

s/Ryan M. Fountain
Ryan M. Fountain
Attorney for Defendant

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