Cite as 695 F.Supp. 198 (D.Md. 1988)
flag to be placed outside each McSleep Inn, on a decal to be placed on the front door, and on the wall behind the registration desk. It changed the name from “McSleep” to “McSleep Inn.” It adopted a policy of including the four chain logo with all corporate advertising. And three weeks before trial, after the Court had already heard motions for summary judgment in this case, it added a small sign underneath the McSleep Inn sign on the main pylon in front of the hotel which reads “by Quality International.”
The McSleep Inn mark has not been exposed to the consuming public in connection with the sale of McSleep Inn services, although hundreds of franchise packets have been sent out to potential franchisees of McSleep Inn. To date only four franchises are signed up, but others are in process. The first McSleep Inn is scheduled to open in Pikesville, Maryland, in December 1988.
The earliest justifications given by Mr. Hazard and Mr. Mosser, the vice president in charge of franchising, for using the name McSleep Inn in the face of McDonald’s family of marks, were grounded on the observation that McDonald’s was in the fast-food business and Quality International was in the lodging business. Later they urged that the “Mc” prefix had become generic and was in the English lexicon and that the mark McSleep Inn would be displayed in a distinctive manner.
V. SURVEY TESTIMONY
It is undisputed that appropriate survey evidence is meaningful to establish the likelihood of confusion, and at trial each party presented survey evidence of its own and offered a critique of the survey evidence presented by the other.
A mall intercept survey was conducted on behalf of Quality International by Dr. Jacob Jacoby, a professor at New York University. This type of survey is conducted at randomly selected shopping malls by showing participants a visual stimulus and obtaining responses to questions.
Dr. Jacoby’s survey was actually four separate surveys, each conducted in connection with a different visual stimulus. About 160 respondents were interviewed in each of the surveys. The first of the four stimuli used in the mall intercept survey by Dr. Jacoby was an advertisement for Quality International as it would appear in an airline magazine. The text of the advertisement contained a reference to McSleep Inn along with other products of Quality International, and the four chain logo was included at the bottom. That advertisement did not advertise McSleep Inn specifically. The second stimulus was a mock up of a yellow page display advertisement in which a McSleep Inn was advertised with the McSleep Inn logo and the four chain logo which included the name Quality International. The third stimulus was an artist rendering of a proposed McSleep Inn in front of which was a sign on a pylon that included the McSleep Inn logo and under which there was a smaller sign with the words “by Quality International.” Finally, a control survey was conducted by showing the respondents a picture of an Egg McMuffin sandwich with the words Egg McMuffin written underneath it.
In connection with the survey involving the airline advertisement, despite the fact that arrows were added to the advertisement pointing to McSleep Inn, only 57 percent of those surveyed were aware that McSleep Inn was being advertised. Of those 57 percent, in response to the question “Who or what company, or companies, is that [that owns or operates this motel]?” only 7.5 percent responded “McDonald’s.”
In connection with the yellow page stimulus, of 164 respondents, 83 percent (or 136 respondents) knew that the advertisement was advertising McSleep Inn. Of those, 10.3 percent identified McDonald’s as the name of the company that owns or operates McSleep Inn.
With respect to the artist’s rendering of a McSleep Inn, 163 respondents were shown the picture and 147 indicated they knew that McSleep Inn was being advertised. Of those 16.3 percent said that McDonald’s was the company that owns or operates the hotel. If the responses are limited to those who had made decisions
