International Kennel Club Of Chicago, Inc. v. Mighty Star, Inc.

Plaintiff-appellee International Kennel Club of Chicago, Inc. ("IKC"), brought this action against the defendants-appellants Mighty Star, Inc. ("Mighty Star") and DCN Industries, Inc. ("DCN"), alleging that the defendants' use of the plaintiff's "International Kennel Club" name violates section 43(a) of the Lanham Act, 15 U.S.C. Sec. 1125(a), as well as state statutory and common law. The district court granted the plaintiff's motion for a preliminary injunction against the defendants' use of the name. The defendants appeal. We affirm in part, reverse in part, and remand.

A. Plaintiff's use of the "International Kennel Club" name

The IKC is an Illinois business corporation that sponsors dog shows in Chicago, and is a "show giving member club" of the American Kennel Club ("AKC"), a nationwide organization devoted to furthering the "sport" of showing purebred dogs. In addition to giving dog shows, the IKC serves as an information source for AKC activities in Chicago and provides assistance in the pedigree registration of purebred dogs with the AKC. The IKC also sponsors seminars and contributes funds for animal medical research, the Dog Museum of America, and 4-H programs.

The IKC sponsors two major dog shows each year, with the annual spring show having an attendance of between 20,000 to 30,000 people. An average of 1,500 to 2,000 dogs are entered in plaintiff's shows, and for the spring 1986 show, entries came from 36 different states and various Canadian provinces. Persons who attend the plaintiff's shows are often interested in canine-related paraphernalia. While the IKC does not sell such items, private vendors rent booth space at plaintiff's shows at prices ranging from $600 to $800 per booth and sell dog-related items, including stuffed dogs. In 1985 and 1986, the annual revenue from the rental of booth space averaged $60,000.

In an effort to promote its activities, the IKC spent approximately $60,000 of its total revenue of $231,226 for fiscal year 1986 to hire a full-time staff person to handle the advertising of the dog shows and public relations. The paid advertising of the IKC, consisting of advertisements in magazines with a nationwide circulation such as the American Kennel Club Gazette and Dog World Magazine, as well as advertisements in the Chicago-area media, is primarily designed to reach canine enthusiasts (the dog "fancy"1 in trade parlance). The activities of the IKC have also been covered in a variety of national and local publications.2

B. Defendant's decision to market toy dogs under the name "International Kennel Club"

For almost three decades, defendants DCN and its wholly-owned subsidiary Mighty Star have sold stuffed toys in the United States, Canada, England, Australia and Asia. For many years, defendants used the trademark "Polar Puff" to refer to their top of the line products and prominently displayed the trademark on their products and in their advertisements. In the later part of 1985, the defendants decided to add to their product line of stuffed animals a line of stuffed "pedigree" dogs representing different breeds. The defendants state that at the time they had never heard of the plaintiff, and that they chose the name "International Kennel Club" in part because of the international scope of their business, and also because the products were toy dogs. The defendants utilized a marketing strategy whereby purchasers could "register" their dogs with the "International Kennel Club" and receive an "official International Kennel Club membership and pedigree certificate." Part of the defendants' registration strategy was to emphasize that the stuffed canines represent breeds "sanctioned by the International Kennel Club." Although the defendants' International Kennel Club collection of dogs was marketed in conjunction with their "24K Polar Puff" line of toy animals, the advertising for the stuffed dogs did not always use this second name along with the International Kennel Club name. Defendants' instore advertising included plaques, buttons and counter displays, all of which referred to the "International Kennel Club Center," the "International Kennel Club," or the "IKC" without also referring to the defendants' "Polar Puff" trademark.

After choosing the IKC name for its line of toy dogs, Mighty Star's counsel conducted a search of trade directories in major cities as well as a search of federally registered trademarks. The search disclosed two telephone directory listings in Chicago--one for "inteRnational kennEl" and one for the "International Kennel Club of Chicago." Nevertheless, counsel advised the defendants that the use of the International Kennel Club name would not infringe upon the plaintiff's name given the local scope of the plaintiff's operations and the fact that the plaintiff did not directly compete with Mighty Star or DCN.3 Thus, the defendants proceeded to market their line of stuffed dogs under that name without contacting the plaintiff to determine if the use of the International Kennel Club name would present a problem of infringement.

C. Evidence of confusion allegedly caused by the marketing of the defendants' toy dogs under the "International Kennel Club" name

In late March 1986--six months after learning of the plaintiff's existence--the defendants placed a full-page advertisement for their line of stuffed dogs in the April edition of the Good Housekeeping magazine. This advertisement was followed by ads in the June issues of Better Homes and Gardens, Vogue, and Cosmopolitan magazines that reached the public in mid-May. Following the publication of these ads, IKC officials began receiving telephone calls (at a rate of about one per day), letters, and personal inquiries from people expressing confusion as to the plaintiff's relationship to the International Kennel Club stuffed dogs. Prior to the plaintiff's spring 1986 dog show, the IKC's public relations officer, Ms. Johnson, received telephone calls asking to purchase "International Kennel Club stuffed dogs." Ms. Johnson testified that she thought the callers were referring to the stuffed dogs sold by vendors at the plaintiff's shows, and told the callers that the toy dogs would continue to be sold at the show.

The IKC learned of the defendants' line of International Kennel Club toys at the plaintiff's spring dog show on March 29 through 30, 1986. Mr. Auslander, the Secretary and Treasurer of the IKC, testified that a vendor at the show brought one of the defendants' ads to his attention, and asked "why I was involved or why our club was involved in a venture of that type." Thereafter, in early April, the IKC began to receive letters of inquiry concerning the defendants' toy canines. Eight letters requested information on purchasing the dogs, and another from a vendor expressed concern about the IKC's apparent competition.4 The latter wrote that "[w]e are concerned as vendors that this practice [the plaintiff's apparent selling of toy dogs] conflicts with the stated aims of your involvement as a purebred dog club." The defendants' Executive Vice-President Sheldon Bernstein testified that neither Mighty Star nor DCN received any letters indicating confusion as to their relationship with the plaintiff.

After the plaintiff's spring 1986 dog show, Mr. Auslander attended between 15 and 20 other dog shows throughout the country during 1986. Auslander testified that at about half of these shows--including the shows in Florida, Wisconsin, Nebraska, Colorado, Massachusetts, California and Illinois--he was questioned about the relationship between the IKC and Mighty Star's toy dogs. Auslander further recounted that members of the board of directors of the American Kennel Club consulted him, expressing concern that the International Kennel Club might be involved in their sale. According to Auslander's testimony, the President of the American Kennel Club reported to Auslander that it had received questions about whether the toys were a fundraising effort for the Dog Museum of America or the American Kennel Club. Thereafter, at the request of the American Kennel Club, the plaintiff placed an ad disclaiming any relationship to the defendants' toys in the July issue of the American Kennel Club Gazette.

D. Plaintiff files suit and moves for a preliminary injunction

Confronted with the complaints and inquiries noted above, the IKC filed the instant trademark infringement action on May 23, 1986, and simultaneously filed a motion to preliminarily enjoin Mighty Star and DCN's use of the International Kennel Club name. In response to the lawsuit, the defendants cancelled almost all of their advertising of the products bearing the plaintiff's name. One of the defendants' advertisements--placed in the September issue of Good Housekeeping --used the International Kennel Club name but contained a disclaimer of any relationship to the plaintiff's dog shows. This was the last advertisement that DCN and Mighty Star placed for their line of toy canines.

On July 14-16, 1986, the trial court held a hearing on the plaintiff's motion for injunctive relief and on July 21, 1986, ruled from the bench that the plaintiff was entitled to a preliminary injunction. In so ruling, the court found:

"I believe that the preliminary injunction in this case which is sought by the plaintiff should be granted. ... it seems to me the thing that the parties should do is this: I think a plan should be worked out between the plaintiff and the defendant under which the defendant is given an opportunity to find a new name in a reasonable period of time, but during--and then to start advertising under its new name, but during the interim that they work out a system where, with disclaimer or otherwise, the defendant can gradually shift over from its present business enterprise and use of the name to some other name without undue disruption of its business. I think the parties in good faith can do that."

Despite the court's directions that the parties attempt to work out a plan that would allow the defendant to gradually shift to using a new name for its toy dogs, the parties failed to agree on the terms of such a plan. After a hearing on the terms of the injunction, the court entered an order preliminarily enjoining the defendants' use of the "International Kennel Club" name. Specifically, the order: (1) required defendants to immediately choose a new name which would not be "confusingly similar" to International Kennel Club, but which could have the initials "IKC"; (2) prohibited defendants from placing any more advertising in any North American publication using the name "International Kennel Club" to identify their stuffed dogs; (3) ordered the defendants to withdraw--where possible--unpublished advertising containing the name "International Kennel Club"; and (4) ordered the defendants to begin as soon as commercially practicable, but no later than January 31, 1987, to cease selling stuffed dogs under the "International Kennel Club" name. The order further required the defendants to pay into an escrow account a licensing fee of fifty cents per dog sold under the plaintiff's name subsequent to October 15, 1986 (calculated to be a 3 1/3% royalty). This fund was to serve as a bond for the plaintiff on appeal.

Subsequently, the defendants filed a motion to require the plaintiff to post security and to modify and stay the injunction. The court refused to modify the injunction, but stated that to avoid a stay of the injunction order, the plaintiff would have to post a bond pending appeal in addition to the escrow money provided for in the initial injunction. However, when plaintiff's counsel represented to the court that the plaintiff could not afford a bond, the court found that "to force you to post a bond would be basically to destroy your little operation." Consequently, rather than ordering the plaintiff to post a bond, the court granted the defendants' motion to stay the preliminary injunction order pending appeal.

Court of appeals review of a trial court's grant (or denial) of a preliminary injunction is limited to the question of whether the court abused its discretion in granting the requested relief. Curtis v. Thompson, 840 F.2d 1291, 1296 (7th Cir.1988); Roland Machinery Company v. Dresser Industries, Inc., 749 F.2d 380, 384-85, 388-91 (7th Cir.1984); Hyatt Corp. v. Hyatt Legal Services, 736 F.2d 1153, 1156 (7th Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 361 (1984). As we discussed in Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-38 (7th Cir.1986), our analysis of whether the trial judge abused his discretion entails the application of "mixed" standards: factual determinations are reviewed under the "clearly erroneous" standard, while legal conclusions are reviewed de novo. 782 F.2d at 1437. "But the ultimate weighing and balancing that makes up the decision whether to issue a preliminary injunction is highly discretionary [and is] given substantial deference.... Thus our review is limited to determining 'whether the judge exceeded the bounds of permissible choice in the circumstances, not what we would have done if we had been in his shoes.' " A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 906 (7th Cir.1986) (quoting Roland Machinery, 749 F.2d at 390).

In establishing its entitlement to a preliminary injunction, the IKC bears the burden of demonstrating:

"(1) that it has no adequate remedy at law;

(2) that it will suffer irreparable harm if the preliminary injunction is not issued;

(3) that the irreparable harm it will suffer if the preliminary injunction is not granted is greater than the irreparable harm the defendant will suffer if the injunction is granted;

(4) that it has a reasonable likelihood of prevailing on the merits; and

(5) that the injunction will not harm the public interest."

Brunswick Corp. v. Jones, 784 F.2d 271, 273-74 (7th Cir.1986). We review the district court's analysis of these factors for factual and legal error and rule on the propriety of the court's grant of the injunction in light of the standard of review set forth.

In order to prevail in its action under section 43(a) of the Lanham Act, the IKC must establish: (1) that it has a protectible trademark, and (2) a "likelihood of confusion" as to the origin of the defendant's product. A.J. Canfield, 796 F.2d at 906; McGraw-Edison Company v. Walt Disney Productions, 787 F.2d 1163, 1167 (7th Cir.1986). At the preliminary injunction stage, however, a plaintiff need only demonstrate that he or she has a "better than negligible" chance of succeeding on the merits to justify injunctive relief. Curtis, 840 F.2d at 1296; Brunswick Corp., 784 F.2d at 275 ("Although the plaintiff must demonstrate some probability of success on the merits, 'the threshold is low. It is enough that the plaintiff's chances are better than negligible ...' ") (quoting Roland Machinery, 749 F.2d at 387). We therefore analyze not whether the plaintiff will or will not prevail on the merits, but whether the plaintiff has demonstrated a better than negligible chance of establishing the "trademark" and "likelihood of confusion" prongs under section 43(a). Hyatt Corp., 736 F.2d at 1156.5

The first step in determining whether an unregistered mark or name is entitled to the protection of the trademark laws is to categorize the name according to the nature of the term itself. Trademarks that are fanciful, arbitrary [i.e. made-up terms like "Kodak"] or suggestive are fully protected, while "descriptive words (e.g. "bubbly" champagne) may be trademarked only if they have acquired secondary meaning, that is, only if most consumers have come to think of the word not as descriptive at all but as the name of the product." Blau Plumbing, Inc. v. SOS Fix-It, Inc., 781 F.2d 604, 609 (7th Cir.1986). In Blau, the court explained that:

"The goal of trademark protection is to allow a firm to affix an identifying mark to its product (or service) offering that will, because it is distinctive and no competitor may use a confusingly similar designation, enable the consumer to discover in the least possible amount of time and with the least possible amount of head scratching whether a particular brand is that firm's brand or a competitor's brand.... To allow a firm to use as a trademark a generic word, or a descriptive word still understood by the consuming public to describe, would make it difficult for competitors to market their own brands of the same product. Imagine being forbidden to describe a Chevrolet as a 'car' or an 'automobile' because Ford or Chrysler or Volvo had trademarked these generic words, or an after-shave lotion as 'bracing' because the maker of one brand of after-shave lotion had trademarked this descriptive word."

(Emphasis added, citations omitted). Hence, although a term's "primary" meaning is merely descriptive, if through use the public has come to identify the term with a plaintiff's product or service, the words have acquired a "secondary meaning" and would become a protectible trademark. Gimix, Inc. v. J S & A Group, Inc., 699 F.2d 901, 907 (7th Cir.1983); Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 79 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772 (1978). In other words, " 'secondary meaning' denotes an association in the mind of the consumer between the trade dress [or name] of a product and a particular producer." Vaughan Manufacturing Co. v. Brikam Intern., Inc., 814 F.2d 346, 348 (7th Cir.1987). We agree with the district court that the phrase "International Kennel Club" fits within the category of descriptive words in that it "specifically describes a characteristic or ingredient of an article [or service]." Miller Brewing Co., 561 F.2d at 79. Thus, the "International Kennel Club" name is entitled to trademark protection only if the name has acquired "secondary meaning," i.e. has become distinctive of the plaintiff's goods and/or services.

The defendants claim that the plaintiff's evidence introduced at the preliminary injunction hearing is insufficient to demonstrate that the plaintiff has better than a negligible chance of establishing that the "International Kennel Club" name acquired secondary meaning among the consuming public. "The factors which this court has indicated it will consider on the issue of secondary meaning include '[t]he amount and manner of advertising, volume of sales, the length and manner of use, direct consumer testimony, and consumer surveys.' " Gimix, Inc., 699 F.2d at 907 (quoting Union Carbide Corp. v. Ever-ready, Inc., 531 F.2d 366, 380 (7th Cir.), cert. denied, 429 U.S. 830, 97 S.Ct. 91, 50 L.Ed.2d 94 (1976)). "Consumer testimony and consumer surveys are the only direct evidence on this question ... [t]he other factors are relevant in a more circumstantial fashion." Id. Not surprisingly, the defendants attack the absence of a consumer survey in the evidence produced by the plaintiff at the preliminary injunction hearing.

Despite this attack, we are not persuaded that the absence of a consumer survey is per se fatal to the plaintiff's request for a preliminary injunction. As noted previously, the trial court merely granted a preliminary injunction; it did not decide the case on the merits after allowing for full discovery. See Hyatt Corp., 736 F.2d at 1156. The IKC may be in a better position to produce a survey at a full trial on the merits. Thus, while the lack of survey evidence fails to support the plaintiff's request for preliminary relief, we are convinced that it does not necessarily destroy the plaintiff's entitlement to that relief: the existence of a survey is only one of the variety of factors outlined in Gimix as being relevant to the issue of secondary meaning, and the plaintiff may resort to evidence other than a survey in attempting to demonstrate a "better than negligible" chance of establishing secondary meaning. Moreover, Gimix was decided at the summary judgment stage, after the parties had completed their discovery. In contrast, the plaintiff's motion in this case was decided under the time pressures characteristic of preliminary injunction hearings and without the benefit of extensive discovery. For these reasons, the plaintiff's burden at the preliminary injunction stage is slight, and on two separate occasions this court has declined to mandate a consumer survey at this preliminary stage. See A.J. Canfield, 796 F.2d at 908 ("Although Canfield [the plaintiff] did not introduce its own survey, it was not required to do so in order to prevail on a preliminary injunction motion."); Vaughan Manufacturing Co., 814 F.2d at 346.

The remaining factors articulated in Gimix as material to the issue of secondary meaning weigh in favor of the trial court's conclusion that the International Kennel Club of Chicago "has acquired a secondary meaning like that among a small but very well-defined group of people in Chicago and elsewhere." In particular, the "amount and manner of advertising" and the "length and manner of use" of the International Kennel Club name yields a better than negligible chance of establishing secondary meaning. With respect to advertising, the plaintiff introduced evidence supporting the inference that the International Kennel Club has developed and maintained its reputation among canine enthusiasts through advertising carefully targeted to reach persons interested in the sport of showing purebred dogs. It has advertised in publications with a continent-wide circulation that are of interest to dog fanciers, including the American Kennel Club Gazette, Kennel Review, and Dog World. And because its shows are held in Chicago, the plaintiff advertises in regional publications of a more general appeal, including the major Chicago newspapers and magazines, as well as various local periodicals. Moreover, the plaintiff mails out as many as 15,000 "premium lists" prior to each show to persons on its mailing lists, and also employs a full-time public relations professional. In its most recent fiscal year, these advertising and public relations expenses have amounted to almost $60,000, or more than 42 percent of the club's total administrative and operating expenses. Viewed another way, these expenses come to more than 25 percent of the club's total revenues; further, the club's activities are often given extensive free publicity. As an example, both major Chicago newspapers have highlighted the plaintiff's dog shows and have designed and promoted special advertising supplements around those columns.

As evidence of secondary meaning, the International Kennel Club also introduced evidence that the club received a number and a variety of letters and phone calls asking about the defendants' toy dogs. In A.J. Canfield, the court found similar evidence--letters and phone calls to Canfield "all searching for the elusive diet chocolate fudge drink" (after a competitor advertised its own "Chocolate Fudge" drink)--"sufficient to show that when consumers think of diet chocolate fudge soda they think of Canfield." 796 F.2d at 907. Likewise, the correspondence directed to the plaintiff provides support for the inference that when dog fanciers see the "International Kennel Club" name, they think of the plaintiff. Finally, the plaintiff has operated under and advertised the "International Kennel Club" name continuously for over 50 years. In our view, the club's half-century use of the name, combined with their advertising, substantial free publicity, and wide-ranging activities in support of dog groups, clearly renders the plaintiff's chances of establishing that the International Kennel Club name has acquired secondary meaning better than negligible. See A.J. Canfield, 796 F.2d 907 (Plaintiff's use of the label "chocolate fudge" for 13 years, combined with substantial advertising and free publicity, is sufficient to establish a likelihood of secondary meaning); Vaughan Manufacturing Company, 814 F.2d at 349 (plaintiff's use of its "trade dress" for over 14 years, combined with extensive advertising and evidence of copying, is sufficient to demonstrate a likelihood of secondary meaning).

The second element of section 43(a) liability is the existence of a "likelihood of confusion" as to the origin of the defendant's product. McGraw-Edison Co. v. Walt Disney Productions, 787 F.2d 1163, 1167 (7th Cir.1986). "Whether or not there is a likelihood of confusion is a question of fact as to the probable or actual actions and reactions of prospective purchasers of the goods or services of the parties. A variety of factors may be material in assessing the likelihood of confusion." American International Group, Inc. v. London American International Corp., Ltd., 664 F.2d 348, 351 (2d Cir.1981). See also Henri's Food Products Co., Inc. v. Kraft, Inc., 717 F.2d 352, 354 (7th Cir.1983). In determining a likelihood of confusion, this circuit, applying a slightly modified version of Judge Friendly's analysis in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961), has considered several factors to be important:

"The degree of similarity between the marks in appearance and suggestion; the similarity of the products for which the name is used; the area and manner of concurrent use; the degree of care likely to be exercised by consumers; the strength of the complainant's mark; actual confusion; and intent on the part of the alleged infringer to palm off his products as those of another."

McGraw-Edison, 787 F.2d at 1167-68 (quoting Helene Curtis Industries, Inc. v. Church and Dwight Co., Inc., 560 F.2d 1325, 1330 (7th Cir.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1252, 55 L.Ed.2d 772 (1978)).

"None of these factors by itself is dispositive of the likelihood of confusion question, and different factors will weigh more heavily from case to case depending on the particular facts and circumstances involved." Marathon Manufacturing Co. v. Enerlite Products Corp., 767 F.2d 214, 218 (5th Cir.1985). We emphasize that at this preliminary stage in the proceedings, the plaintiff must at a minimum establish that his or her chances of demonstrating a "likelihood of confusion" are better than negligible. With these principles in mind, we turn to an examination of the evidence of confusion introduced at the preliminary injunction hearing.

Initially, the plaintiff argues that "[p]erhaps the most blatant evidence of the likelihood of confusion is the fact that the defendants have marketed their pedigree toy dogs under a mark that is not merely similar to plaintiff's name, but is actually indistinguishable from it: The International Kennel Club." (Appellee's Brief at p. 28). The defendants point out, however, that the plaintiff typically uses its full name, "International Kennel Club of Chicago" and that it uses the name in conjunction with a wolfhound head logo. In contrast, the defendants' advertisements display its "24K Polar Puff" house mark along with the International Kennel Club name. The defendants urge that these differences serve to clearly distinguish the parties' marks, thereby undercutting any possible confusion.

While DCN and Mighty Star place a great deal of weight on the differences between the marks used by the parties, "this circuit has recognized the rule that if one word or feature of a composite trademark is the salient portion of the mark, it may be given greater weight than the surrounding elements." Henri's Food Products, 717 F.2d at 356. Particularly where the public does not encounter the marks together, case law holds that it is inappropriate to focus on minor stylistic differences in determining the likelihood of confusion caused by the defendant's use of the allegedly infringing name. See Sun-Fun Products, Inc. v. Suntan Research and Development, Inc., 656 F.2d 186 (5th Cir.1981) ("the inability to compare the [marks] side-by-side and observe the precise difference in appearance may increase the likelihood of confusion.") As this court stated in James Burrough Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266, 275 (7th Cir.1976):

"It is of course proper to consider similarities and dissimilarities between the marks in their entireties as one element in determining likelihood of confusion. But the comparison is not that involved in testing for copyright infringement. Though the marks must be compared, they must be compared in light of what occurs in the marketplace, not in the courtroom. Hence it was error below to have evaluated the Distiller's evidence on the basis of judicial comparison of Distiller's label and Restaurant's sign. Side-by-side comparison is not the test.... The consuming public is unlikely ever to be presented with the opportunity for such comparison. As the court said in Colborn v. Puritan Mills [108 F.2d 377 (CA 8 1950) ], ... 'We are to determine ... the purchasing public's state of mind when confronted by somewhat similar trademarks singly presented ...' "

(Citations omitted). The only significant difference between the names used by the parties (International Kennel Club of Chicago and the International Kennel Club) is the addition of a common geographic term "of Chicago" (which has frequently been omitted by the plaintiff); under these circumstances, we are convinced beyond doubt that the "similarity" factor weighs in favor of the conclusion that the alleged infringer has appropriated the dominant portion of the mark. See, e.g., Hyatt Corp., 736 F.2d at 1159 (Hyatt Hotels versus Hyatt Legal Services); Lycee Francais de New York v. Reynaud, 143 U.S.P.Q. 311, 311 (N.Y.Supp.1964) ("[t]he fact that plaintiff uses the words 'de New York' after the words 'Lycee Francais' to describe its institution, while defendant uses the word 'Kennedy' thereafter, is of little significance. Both would ordinarily be called ... 'Lycee Francais.' "). See also Metropolitan Opera Association, Inc. v. Metro Opera Association of Chicago, Inc., 81 F.Supp. 127 (N.D.Ill.1948); American Kennel Club v. American Kennel Club of Louisiana, Inc., 216 F.Supp. 267 (E.D.La.1963). DCN and Mighty Star further invite us to infer that the defendants' use of its house mark "24K Polar Puff" in conjunction with the International Kennel Club name on its advertising decreases the likelihood of confusion among consumers. This argument is a smoke screen and a poor excuse for the defendants' blatant misappropriation of the plaintiff's name, for even if fanciers of purebred dogs or stuffed toys attached any meaning to the defendants' house mark, they would necessarily believe that the International Kennel Club had licensed, approved or otherwise authorized the defendants' use of the International Kennel Club name. See Lois Sportswear U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 876 (2d Cir.1986) ("While appellant's trade dress may dispel some point of sale confusion engendered by appellant's use of appellee's distinctive trademark, the labeling does nothing to prevent consumers from mistakenly assuming that appellee is somehow associated with appellants or has consented to the mark's use."); A.T. Cross Co. v. Jonathan Bradley Pens, Inc., 470 F.2d 689, 692 (2d Cir.1972) ("A purchaser could well think plaintiff had licensed the defendant as a second user and the addition is thus 'an aggravation, and not a justification.' "); A.J. Canfield v. Vess Beverages, Inc., 612 F.Supp. 1081, 1091 (N.D.Ill.1985), aff'd, 796 F.2d 903 (7th Cir.1986) ("Vess's [the defendant's] use of its own Vess house mark in conjunction with chocolate fudge is not a defense to Canfield's infringement claim, for the use of another's trademark constitutes infringement with or without the use of the infringer's house mark."). We conclude that there is more than ample support in the record for the district court's conclusion that the "degree of similarity" between the marks provides some evidence of a likelihood of confusion.