Co. v. Fleischmann Distilling Corp., 390 F.2d 117 (9th Cir.), cert. denied, 391 U.S. 966, 88 S.Ct. 2037, 20 L.Ed.2d 879 (1968) (beer vs. scotch); Cook Chemical Co. v. Cook Paint & Varnish Co., 185 F.2d 365 (8th Cir.1950) (paint vs. insecticide); Carling Brewing Co., Inc. v. Philip Morris, Inc., 277 F.Supp. 326 (N.D.Ga.1967) (beer vs. tobacco); Esquire, Inc. v. Maira, 101 F.Supp. 898 (M.D.Pa.1951) (magazine vs. clothing store). The measurement of this strength is revealed by evidence demonstrating a likelihood of confusion. The relationship of these two factors, strength and confusion, operates such that evidence of strength of a mark is perhaps the most significant factor in predicting the likelihood of confusion. On the other hand, evidence of the likelihood of confusion in a related field or neighboring market, or even in a competitive market, defines the scope of a mark’s enforcement and therefore is the measurement of its strength. Variations on the weight of evidence on these two aspects, i.e., the strength of the mark and the likelihood of confusion, will determine whether one mark will preclude the use of a later adopted and used mark.
Accordingly, a mark may enjoy such strength that it may be enforced in related fields or neighboring markets, whether they are product markets or territorial markets. Or, stated obversely, the likelihood of confusion in related fields or neighboring markets will demonstrate the strength of the mark. Communications Satellite Corp. v. Comcet, Inc., supra; Yale Electric Corp. v. Robertson, supra; McDonald’s Corp. v. McBagel’s, Inc., supra. Thus, a mark is not to be confined formulistically to a classification established by the Patent and Trademark Office or by lines of market competition. A mark is the identity of a corporation, a product or a service, and to the extent goodwill attaches, it knows no boundaries. Its reach is its strength. Where the public is confused and attributes a source, product, or service incorrectly, the owner of the mark, even though not a competitor, may experience damage to his reputation and goodwill. Both of these may have more meaning to the owner than immediate profits in the marketplace because they represent the potential for long range future profits.
On the other hand, two marks that serve to identify products in two unrelated markets may very well coexist without confusion in the public’s eye. Thus Notre Dame brand imported french cheese has been permitted to coexist with Notre Dame University; Bulova watches with Bulova shoes; Alligator raincoats with Alligator cigarettes; “This Bud’s for you” in beer commercials with the same phrase used by a florist; White House tea and coffee with White House milk; Blue Shield medical care plan with Blue Shield mattresses; Family Circle magazine with Family Circle department store; Ole’ cigars with Ole’ tequila; and Sunkist fruits with Sunkist bakery products. The list continues.
The determinative test cannot focus on how close or related the industries or products are, but rather by whether confusion is created so that an appreciable number of typical consumers will likely be confused.
It cannot be overlooked, however, that a close affinity of markets for two different products or services can create in the public perception a belief or expectation that one would be expected to go into the other. This belief or expectation becomes a factor in explaining confusion that may be shown between two products that do not compete with each other. Thus, the relatedness of markets in which the competing marks are used is relevant to the likelihood-of-confusion issue.
The enforcement of trademark rights to prevent use on related, but noncompetitive, goods is sometimes referred to as the “Aunt Jemima doctrine.” The rule dates from the 1917 decision of the Second Circuit in Aunt Jemima Mills Co. v. Rigney & Co., 247 F. 407 (2d Cir.1917) cert. denied, 245 U.S. 672, 38 S.Ct. 222, 62 L.Ed. 540 (1918), which enforced the mark “Aunt Jemima” used by the plaintiff on pancake batter against use of the same mark on defendant’s pancake syrup. The court rejected the old rule limiting enforcement to competitive goods and said a mark would
