If A Customer Cannot See The Product On Which Mark Is Affirmed, No Confusion Possible

Addressing issues of trademark infringement and Florida's Deceptive and Unfair Trade Practices Act, the U.S. Court of Appeals for the Eleventh Circuit affirmed summary judgment ruling that where the product on which a mark is affirmed cannot be seen by a customer, there is no likelihood of confusion. Custom Mfg. & Eng'g, Inc. v. Midway Services., (11th Cir., Nov. 21, 2007) (Tjoflat, J.).

The plaintiff, Custom Manufacturing & Engineering, Inc. (Custom) had agreed to design for defendant Midway Services (Midway) a water-meter reading system to be installed in residential complexes, but Midway had cancelled the contract on the ground that Custom had breached it and hired a competitor to finish the job. In the midst of litigating the resulting breach of contract action, Custom alleged Lanham Act trademark infringement and false designation of origin as well as tortuous interference with business