Trojan Battery v. Golf Carts of Cypress
The Fifth Circuit affirmed the district court's bench trial finding of trademark infringement under Lanham Act § 32 and § 43(a), holding that defendant Trojan EV, LLC's use of the TROJAN-EV mark for golf carts infringed plaintiff Trojan Battery Company's registered TROJAN marks for batteries. Applying the Fifth Circuit's eight-factor "digits of confusion" test, the court found six factors favored Trojan Battery: (1) the TROJAN marks were strong, with commercial dominance in golf cart batteries (80% OEM market share) that third-party uses on unrelated products did not dilute; (2) the marks were highly similar in appearance, sound, and meaning, with "TROJAN" as the dominant element; (3) golf carts and golf cart batteries were highly related complementary products sold together; (4) the parties shared retail outlets and purchasers; (5) they used identical advertising channels; and (6) defendant intended to trade on plaintiff's goodwill, inferred from the district court's adverse credibility finding that defendant Nell falsely testified he was unaware of TROJAN batteries when forming Trojan EV despite selling golf carts containing those batteries. The court reversed only on the actual confusion factor and vacated the permanent injunction as overbroad, but affirmed liability and disgorgement of defendants' profits totaling $4.7 million.
The decision turns on two noteworthy applications of Fifth Circuit confusion-factor doctrine. First, the court upheld an intent-to-confuse finding based entirely on circumstantial evidence and an adverse credibility determination, holding that the totality of evidence—defendant's prior battery sales, website content, and pricing discussions—supported inferring knowledge and intent to capitalize on plaintiff's mark despite defendant's contrary testimony, explicitly declining to require direct evidence of bad faith. Second, the court carefully cabined the actual confusion factor by distinguishing Elvis Presley Enterprises' initial-interest confusion doctrine, holding that five instances of confusion over two years was insufficient under Amstar where sales ran into millions annually and—critically—plaintiff presented no evidence the TROJAN marks brought consumers to defendant's website initially, even though confusion may have "swayed" some purchases once there. This distinction between confusion that drives traffic versus confusion among those already engaged with defendant's mark narrows when isolated confusion incidents will satisfy this factor in non-survey cases.