Jaho accused Adagio of infringing its ZODIAC TEA mark, and Adagio counterclaimed that the registration was fraudulently obtained and that the mark is generic, Judge Zobel denied Adagio’s motion for summary judgment of noninfringement. She noted that likelihood of confusion is a factual question not readily amenable to summary judgment., and that there was evidence that would permit a reasonable factfinder to disagree on similarity and strength of the marks, and thus on the question of likelihood of confusion. The accused Adagio teas are sold as the “Zodiac Series,” with different teas being named after different signs of the zodiac. Judge Zobel found that, while the marks sound familiar, sharing “zodiac” as the primary word, the total effect of the packaging, which includes distinct artwork and a brand logo, could be deemed sufficiently different to weigh against confusion, but did not command such a determination. She further held that, while there was an argument that Jaho’s mark was not distinctive, the question of distinctiveness is not one for summary judgment. Finally, she noted that the evidence presented of actual confusion raised issues of fact that likewise precluded summary judgment.
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