La Victoria Foods v. Curtice-Burns

[Ed.’s note: The casebook excerpt presents inly the court’s findings of fact and conclusions of law.] La Victoria Foods (plaintiff) owned the trademark SALSA SUPREMA, under which it sold Mexican-style salsa since 1968. In 1986 La Victoria Foods’ salsa sales were projected to surpass $7,000,000 per year. Curtice-Burns began using the LA SUPREMA trademark for its tortilla chips and its Mexican-style salsa in 1984. Both La Victoria Foods’ product and Curtice-Burns’s products were sold in the same geographic region and the same grocery stores. La Victoria Foods’ SALSA SUPREMA-marked dip was sold in the section of the stores where Mexican products were placed. Curtice-Burns’s LA SUPREMA-marked products were sold in the section of the stores that contained snacks and chips. Both salsas were marketed as dips. La Victoria Foods offered evidence regarding a survey that it sponsored. The survey was created to assess actual confusion between the two trademarks. For La Victoria Foods’ survey, shoppers were intercepted at random as they entered three grocery stores in the Seattle-Tacoma area. Shoppers were offered $2 if they would purchase the product that the interviewer verbally asked them to buy. One hundred fifty-three shoppers were instructed to purchase La Victoria Foods’ SALSA SUPREMA, and 150 shoppers were instructed to buy Curtice-Burns’s LA SUPREMA. Then respondents returned to the interviewer and showed the product they purchased. The interviewer documented whether the shoppers purchased the products they were asked to buy. The study showed the rate of actual confusion between the products was 11.9 percent. The confusion was present regardless of the product shoppers were asked to buy. Additionally, the designer of the survey, Dr. Elizabeth Loftus, randomly spoke to 10 grocery store workers and asked them where LA SUPREMA-marked salsa was located. Of the 10 workers, seven directed Loftus to the section of the store where SALSA SUPREMA was placed, showing that even grocery-store workers, who were supposed to be able to aid the public, demonstrated actual confusion between the products. Lofton and the professional through whom the survey was conducted both testified credibly. Curtice-Burns also sponsored a survey in which random consumers were telephoned and invited to come to the surveyor’s office if they had bought Mexican-style salsa during the past six months. When the consumers arrived, they were seated at a table that had a jar of Curtice-Burns’s LA SUPREMA. Survey participants were permitted to view the product at length and asked to tell the interviewer the name of the product. Over 58 percent of participants gave the name LA SUPREMA or some close variation. Then participants were asked whether they knew what company produced the product. Twenty-one of 27 participants who indicated they knew gave the correct answer. Curtice-Burns’s survey did not assess whether actual confusion with the products was likely. The designer of the survey did not give credible testimony. The survey designer was very critical of the survey designed by Lofton, although he ignored the obvious deficiencies with his own survey.