Westmont Living, Inc. v. Retirement Unlimited, Inc. is a trademark infringement case that originated in the Eastern District of Virginia and was appealed to the Fourth Circuit. At issue were competing motions to dismiss.
A senior-living company called Westmont Living had the registered trademark WESTMONT LIVING, which they claimed Retirement Unlimited (RUI) infringed with its facility named “The Westmont at Short Pump.” The district court found that the territory of Westmont Living — in California and Oregon — was too far away from the RUI’s market in Virginia, North Carolina, and Florida. It relied on Dawn Donut Co. v. Hart’s Food Stores for this decision, which suggested that if marks are used in different markets, they are less likely to be confusing.
The Fourth Circuit found that the district court erred in “mechanically” relying on Dawn Donut without the eight other factors that are used to determine likelihood of confusion, in addition to more recent case law concerning geographic markets.
For one thing, Dawn Donut didn’t take the internet into account. Both Westmont and RUI advertised online and appeared on the same search engine results pages. Also, the district court seemed to ignore survey results that were very good for the plaintiff, with 76% of respondents assuming that The Westmont at Short Pump was a part of Westmont Living when presented with marketing materials from both.
Both companies received website hits from every state, and the court emphasized that consumers of senior facilities truly “shop” in a nationwide market for services. After all, the court noted, seniors often relocate to live near their families. So, the people researching senior housing are typically the residents’ adult children, who could be anywhere in the country.
It should be noted that RUI failed to take the warning and respond to a clear shot across its bow when the USPTO rejected THE WESTMONT AT SHORT PUMP application because it was confusingly similar to WESTMONT LIVING. Despite the USPTO rejection, RUI didn’t change course. Not only did RUI continue to use their mark, they created a stylized logo that, according to survey respondents, looked like it was associated with the Westmont Living brand.
With its remand back to the district court, the Fourth Circuit seems to be implying that it RUI’s use of a very similar trademark for identical services should be determined to be infringing. That’s a result that could have been avoided had RUI refrained from using a mark that was the subject of an application rejected by the USPTO. But I guess it’s hard to change our ways and our branding as we get older.
