In any trademark infringement lawsuit, evidence of actual consumer confusion between two marks can play a key role in a court’s “likelihood of confusion” analysis. This evidence frequently takes the form of a consumer survey demonstrating that certain individuals were in the marketplace, saw the two marks, and believed that they were somehow related.

On February 11, 2013, however, the United States District Court for the Middle District of Florida allowed use of an anonymous Yelp! review to support a finding of likelihood of confusion and a preliminary injunction against the defendant. See You Fit, Inc. et al v. Pleasanton Fitness, LLC et al, Case No. 8:12-cv-01917-JDW-EAJ (M.D. Fla.). In You Fit Inc. v. Pleasanton Fitness LLC, the defendant—a former franchisee of the plaintiff’s You Fit fitness clubs—began operating its own line of gyms under the name “FIT U.” You Fit sued for trademark infringement, among other claims, and at trial You Fit provided the following Yelp! review as proof that consumers were actually confused:

I am soo confused. I was a member at Youfit in [Arizona] and when I moved back to [California] I saw this place by my house and thought great my gym is here! When I went into the gym, I realized it was called Fit U. They use the same basic color scheme on their sign and the motto seemed the same. When I asked the girl at the desk, … [she] said her owner created this brand. I said what are you [sic] rates? Seemed very similar to me as when I was a member at Youfit. Very confusing and a big let down.

Overruling the defendant’s hearsay objection, the court noted that “[w]hile these anonymous posts are not conclusive evidence of actual confusion, they are indicative of potential consumer confusion,” and found that the “actual confusion” factor in its “likelihood of confusion” analysis weighed in favor of You Fit. Pleasanton has filed a Notice of Appeal.

This article was prepared by Justin Haddock (jhaddock@fulbright.com and 512 536 3024) of Fulbright’s Intellectual Property and Technology Practice.