Anne Gilson LaLonde on the Doctrine of Inevitable Confusion and Forgivable Misstatements to the USPTO: Angel Flight of Georgia, Inc. v. Angel Flight America, Inc.
Things are not always as they seem in trademark law. A party can acquiesce to another's use of a similar trademark, yet be granted an injunction. And a party can make a misstatement in a trademark application, yet be spared from a finding of fraud. The Eleventh Circuit made both of these findings in Georgia, Inc. v. Angel Flight America, Inc. In examining this case, Anne Gilson LaLonde, the author of Gilson on Trademarks, discusses the doctrine of inevitable confusion and fraud in obtaining trademark registrations. She writes:
In 2001, Angel Flight of Georgia became aware of the plans of an unrelated group, Angel Flight Southeast, to open offices in Georgia and solicit donations there. When the Southeast group refused to stop using the ANGEL FLIGHT mark, the Georgia group sued in 2003 for trademark infringement. The district court found for the Georgia group on all claims and permanently enjoined the defendant from using the ANGEL FLIGHT mark to solicit funds and promote its services within plaintiff’s territory. The Eleventh Circuit then affirmed the district court’s ruling in its entirety.
The district court found that consumer confusion was likely in this case, given that the ANGEL FLIGHT word mark used by the parties was identical and that the services they provided were also identical. Further, it found that the parties target the same consumers through the same advertising media. In addition, the defendant had reached out to plaintiff’s donors in its fundraising efforts.
. . . .
With all of the recent ominous case law from the Trademark Trial and Appeal Board on fraud as grounds for cancelling a registration, it may be surprising that the Board is lenient as to misstated dates of first use of a mark. If the mark was in valid use at the time of the filing date of the application, then even a false date of first use does not constitute fraud.
(citations omitted)