By Bryan K. Wheelock, Principal
Buc-ee’s, Ltd. operator of a chain of convenience stores under the same name in Texas sued Shepherd Retail and several related competitors in the Southern District of Texas, alleging that the defendants’ Choke Canyon alligator logo infringed Buc-ee’s beaver logo.
In a jury trial that ended on May 22, Buc-ee’s succeeded in convincing the jury that Choke Canyon’s alligator was confusingly similar to its beaver:
In what can only be attributed to “you had to be there,” the jury verdict is hard for the casual observer to comprehend, given the obvious differences in the logos. Perhaps the incongruous result is attributable to the phrasing the jury instructions, which, rather than directing an overall consideration and balancing of the applicable factors, suggests that each factor simply increases or decreases confusion. For example, on the issue of similarity of the products or service, the instructions stated:
This instruction tells the jury that the greater the similarity between the products and services, the greater the likelihood of confusion. This does not seem to be a correct analysis — the similarity of products or services alone does not increase the likelihood of confusion. Since the parties are admittedly direct competitors, did this express instruction that similarity increases the likelihood of confusion cause the jury to find otherwise dissimilar marks to be confusingly similar?
It seems that post-trial motions and maybe even an appeal will be needed before we know whether or not an alligator is similar to an beaver. Until then, alligators everywhere cannot rest easy.