ADT, LLC v. Capital Connect, Inc. (145 F. Supp. 3d 671, 2015)

United States District Court for the Northern District of Texas 2015-10-28

Commerce and Trade

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

A. JOE FISH, Senior United States District Judge

Before the court is the motion of the plaintiffs, ADT LLC and ADT U.S. Holdings, Inc. (together “ADT”), for a preliminary injunction. For the reasons stated below, the plaintiffs’ motion is granted.

I. BACKGROUND

A. Factual Background

ADT provides electronic security services and equipment to homes and businesses throughout the. United States. ADT’s Motion for Preliminary Injunction (“Motion”) at 3 (docket entry 4). ADT has been providing alarm services for over a century and today provides monitoring services for nearly one quarter of American homes equipped with alarm systems. Id. In this case, ADT has sued Capital Connect, four, other, alarm-service sale companies, and five, individual alarm-service sales persons. Complaint (“Complaint”) (docket entry 1). ADT alleges that Capital Connect and the other defendants sell alarm systems in unannounced door-to-door sales visits, during which the defendants “confuse the homeowners into believing that the defendants are somehow affiliated with ADT.” Motion at 1-2. ADT contends that the defendants’ sales tactics violate Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and ADT’s rights against unfair competition at common law. Id. ADT seeks to enjoin Capital Connect “from continuing to use false sales pitches that are likely to confuse customers as to Capital Connect’s affiliation with ADT.” Motion at 1.

Capital Connect was established in 2008 in Tucson, Arizona. It sells the “latest technology in security, automation and interactive services.” Capital Connect’s Response to ADT’s Motion for Preliminary Injunction (“Response”) at 3 (docket entry 46) (citing docket entry 47, Appendix 002, Declaration of Todd Johnson ¶ 3 (“Johnson Deck”)). Capital Connect signs customers to long-term contracts through “a substantial expansion of its independent contractor sales force,” which operates in 10 states, including Texas. Id. Capital Connect is a dealer for one of ADT’s rival security monitoring service companies, Monitronics International. Johnson Deck ¶ 3. Capital Connect’s sales force sells its services door-to-door with the aim of getting customers to sign up for its service to have Monitronics, not ADT, monitor the alarm equipment. Id. ¶¶ 3-5. This case centers on the practices and behavior of Capital Connect’s sales force during these door-to-door sales pitches.

ADT alleges that during Capital Connect’s sales pitches, Capital Connect solicits ADT’s current customers by “making false and deceptive statements that are intended to mislead (and are misleading) ADT’s customers into believing that [Capital Connect] represents] ADT, or that ADT has exited the market, or that ADT’s installed equipment is outdated and in need of an ‘upgrade.’ ” Motion at 3. ADT offers 68 customer declarations to support its claim that Capital Connect’s sales tactics confuse ADT’s customers. ADT’s Sur-reply to Capital Connect’s Sur-reply (“ADT’s Sur-reply”) at 5 (docket entry 77). ADT’s declarations, attached in support of its motion for preliminary injunction, cite interactions with Capital Connect’s sales associates from 2013 to the present. See ADT’s Appendix in Support of Motion for Preliminary Injunction (“ADT’s Appendix”), Exhibit 9, Declaration of Joan Hom-ann ¶4 (July 11, 2013) (docket entry 7); ADT’s Supplemental Appendix in Support of Motion for Preliminary Injunction (“ADT’s Supp. Appendix”), Exhibit 3, Declaration of Cathy Brion ¶ 4 (June 16, 2015) (docket entry 17). ADT’s litigation manager, who is in charge of its customer complaint department, cites an acceleration during 2015 in the number of customer complaints regarding interactions with Capital Connect. ADT’s Appendix, Exhibit 2. Declaration of Marcia Gold (“Gold Deck”) ¶ 5 (docket entry 7). (“The overall numbers in 2015 have nearly tripled over the' same 'five-month period from last year — from 42 to 112 complaints. More troubling is the recent surge in reported misconduct by Capital Connect sales agents: 50 reports of false sales pitches occurring in May 2015 alone ... plus another 41 for the first three weeks of June 2015.”). ADT cites the “rapid escalation” of customer complaints, and a fear that Capital Connect would increase its false sales tactics through hiring college students for the summer as strong evidence of the need for a preliminary injunction. Motion at 10-11; Gold Deck ¶ 7.

The declarations recount a variety of Capital Connect’s- sales tactics, including but not limited to, claims that ADT has gone out of business (ADT’s Third Supp. Appendix, Exhibit 1EE, Appendix _000124-126, Declaration of Dolores Ruiz ¶ 5, “Mr. Gatehouse .stated that ... ADT was ‘going out of business.’ ”); claims that Capital Connect has acquired ADT (Exhibit 1G, Appendix -000032-48, Declaration of William Pearson ¶ 6, “Mr. Beasley stated that Capital Connect was taking over ADT.”); claims that Capital Connect is a contractor for ADT (Exhibit 1HH, Appen-dix_000131-33, Declaration of Karen Juten ¶ 9, “When I asked the Capital Connect representatives for their identification badges, they then stated they were contractors for ADT.”); claims that Capital Connect is affiliated with ADT in some manner' (Exhibit IF, Appendix -000028-31, Declaration of Sidney Sims ¶ 6, “Capital Connect is the manufacturer that made the equipment that ADT installed into my home.”); claims that ADT has left the local market (Exhibit 1G, Appendix -000032-48, Declaration of William Pearson ¶ 6, “He said that ADT was moving out of Florida and relocating' to Colorado. He said ÁDT was no longer servicing alarms in Florida.”); claims that ADT’s equipment is susceptible to malfunction, or tampering (Exhibit 1L, Appendix_000064-66, Declaration of Betty Schwieman ¶ 5, “ADT was having problems with intruders cutting the phone lines and robbing homes.”); claims that the Capital Connect sales associate is at the home to “upgrade” or “update” its alarm system (Exhibit 10, Appendix_000071-73, Declaration of Jose Aviles ¶ 6, “The representative told me that Capital was an ADT affiliate there to upgrade my alarm panel for free.”); claims that customers would not be able to reach 911 in case of an emergency (Exhibit IS, Appendix_000083-85, Declaration of Chandrell Larkin ¶ 10, “Thé representative told me the young kids in the area are- going around cutting phone wires connected to the alarm system which would cut off any signals to ADT alerting ADT to contact emergency services on my behalf.’’); and claims that the sales associates were sent by ADT to check or replace ADT equipment (Exhibit 1HH, Appendix_000131-33, Declaration of Karen Juten ¶ 6, “Mr. Crosby stated that he was there to replace my ADT alarm system for free.”). See also ADT’s Appendix; ADT’s Supp. Appendix; ADT’s Second Supplemental Appendix in Support of Motion for Preliminary Injunction (“ADT’s Second Supp. Appendix”) (docket entry 18); ADT’s Third Supp. Appendix.

Capital Connect insists that it has adopted several measures “to ensure each interaction is professional and its reputation is well-regarded.” Johnson Decl. ¶¶ 7-14. Capital Connect’s sales training manual warns sales associates of the harm a single damaging story oh the local news covering its sales tactics could do to the company. Response at 4 (citing App. 097). Capital Connect requires its sales force to agree to its “Code of Conduct, Sales Rules, and Sales Ethics Agreement,” and dresses its sales force in Capital Connect labeled polo shirts, with photo identification cards labeling the sales associate as a representá-tive from Capital Connect. Id. ¶ 8. Capital Connect’s sales force must agree to. Capital Connect’s “Sales Rules,” which prohibit the sales associates from engaging in inappropriate sales tactics, including a prohibition against “tell[ing] a potential customer that has an existing system with monitoring services that their existing alarm company (1) has been bought out/merged with Capital Connect, (2) is no longer monitoring their system, (3) has sent you to their home to upgrade their alarm ____” App. 032 (“Exhibit D — Sales Rules,” attached to Johnson Decl.). Furthermore, Capital Connect requires new customers who had a pre-existing alarm service agreement with ADT, or a different monitoring service, to sign an “Alarm Upgrade Agreement,” which expressly disclaims any connection between Capital Connect and the current alarm monitoring company. Johnson Decl. ¶ 11. Lastly, Capital Connect engages in quality assurance calls, during which a Capital Connect representative asks the customer if he/she understands that Capital Connect is not affiliated with ADT and that the customer has the responsibility to cancel his/her current contract with ADT. Id. ¶ 10.

Despite these measures, ADT’s customers have reported, and continue to report, to ADT that Capital Connect’s sales force engages in the very behavior Capital Connect and the Lanham Act prohibit. ADT alleges that it has received additional customer complaints of false sales tactics by Capital Connect’s sales force: 70 complaints in June and -57 complaints in July, equaling 269 complaints in 2015. Second Gold Decl. ¶3. To prevent Capital Connect’s sales force from continuing to engage in this prohibited behavior, ADT seek to preliminarily enjoin Capital Connect from continuing to “confuse ADT’s customers in its marketing of alarm services.” Motion at 11.

B. Procedural Background

ADT filed this suit against Capital Connect, as well as several other defendants, in this court on July 7, 2015. On the same day, ADT filed this motion for a preliminary injunction against Capital Connect seeking to prevent Capital Connect from engaging in the alleged “false sales pitches.” Motion at 1. On July 10, 2Q15, ADT filed a motion for a temporary restraining order seeking to restrain Capital Connect from continuing the same underlying conduet. Subsequently, Capital Connect filed a response contesting ADT’s motions for a temporary restraining order and a preliminary injunction. On August 13, 2015, this court denied ADT’s motion for a temporary restraining order. The parties have extensively briefed this motion for preliminary injunction, having each filed sur-replies after the initial motion by ADT, the response by Capital Connect, and the reply by ADT.

II. ANALYSIS

A. Preliminary Injunction Standard

Under 15 U.S.C. § 1116(a), this court has “power to grant injunctions, according to the principles of equity and upon such terms as the court may deem reasonable, to prevent the violation of any right of the registrant of a mark registered in the Patent and Trademark office.” See also Fed. R. Civ. P. 65(a)(1).

To obtain a preliminary injunction, it is well established that a movant must show: (1) a substantial likelihood that the movant will ultimately prevail on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that granting the injunction will not disserve the public interest. Paulsson Geophysical Services, Inc. v. Sigmar, 529 F.3d 303, 309 (5th Cir.2008); Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir.2006); Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.1985) (citing Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974)).

The decision to grant or deny a preliminary injunction is left to the sound discretion of the district court. Mississippi Power & Light, 760 F.2d at 621. A preliminary injunction is an extraordinary remedy which should only be granted if the movant has clearly carried his burden of persuasion oh all four factors. Id.; Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (A preliminary injunction is a “drastic remedy” that “should not be granted unless the movant, by a clear showing, carries the burden of persuasion”) (citation .omitted) (emphasis in original); PCI Transportation, Inc. v. Fort Worth & Western Railroad Company, 418 F.3d 535, 546 (5th Cir.2005) (“[t]he plaintiff has the burden of introducing sufficient evidence to justify the grant of a preliminary injunction”). As a result, “[t]he decision to grant a preliminary injunction is to be treated as the exception rather than the rule.” Mississippi Power & Light, 760 F.2d at 621; House the Homeless, Inc. v. Widnall, 94 F.3d 176, 180 (5th Cir.1996).

B. Evidentiary Matters

Before addressing the merits of ADT’s motion for a preliminary injunction, the court turns to Capital Connect’s arguments regarding the admissibility óf evidence and whether Capital Connect has created a factual dispute necessitating a hearing on ADT’s motion for a preliminary injunction. Response at 8, 13; Capital Connect’s _ Sur-reply at 1 (docket entry 75).

1. Sufficiency of Declaration Evidence to Support a Motion for Preliminary Injunction

Capital Connect first argues that the court should not give ADT’s declarations credence because those declarations are riddled with hearsay. Response at 8, 13 n.12 (“ADT’s customer declarations are re-píete with hearsay about what they were supposedly told by a Capital Connect independent sales representative.”); Capital Connect’s Sur-reply at 1.

The law is well-settled that because the procedures governing a preliminary injunction are generally less formal than those at trial, the court may rely upon otherwise inadmissible evidence when considering a preliminary injunction. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (“[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.”); Sierra Club, Lone Star Chapter v. Federal Deposit Insurance Corporation, 992 F.2d 545, 551 (5th Cir.1993) (“at the preliminary injunction stage, the procedures in the district court are less formal, and the district court may rely on otherwise inadmissible evidence.”); Federal Savings & Loan Insurance Corporation v. Dixon, 835 F.2d 554, 558 (5th Cir.1987) (citing Camenisch for the proposition that “a preliminary injunction proceeding is not subject to jury trial procedures”); Texas Commerce Bank National Association v. State of Florida, No. 3:96-CV-2814-G, 1997 WL 181532, at *4 (N.D.Tex. Apr. 9, 1997) (Fish, J.) (in deciding whether to grant a preliminary injunction, “the court may rely on hearsay evidence and may even give inadmissible evidence some weight”), aff'd, 138 F.3d 179 (5th Cir.1998).

Contrary to Capital Connect’s assertion, most of the declarants’ out-of-court statements do not appear to be hearsay. The declarations attached to ADT’s filings include the customers’ out of court statements to show the customers’ state of mind, an exception to the rule against hearsay. Fed. R. Evid. 803(3); Armco, Inc. v. Armco Burglar Alarm Co., Inc., 693 F.2d 1155, 1160 n. 10 (5th Cir.1982); Mary Kay, Inc. v. Weber, 601 F.Supp.2d 839, 847 (N.D.Tex.2009) (Fish, J.). Additionally, most of the declarants cite Capital Connect’s sales associates’ out of court statements not for the truth of the matter asserted in the statements, but simply as proof that the sales associates made the statements, a verbal act. Tompkins v. Cyr, 202 F.3d 770, 779 n. 3 (5th Cir.2000) (citing United States v. F/N/U Pate, 543 F.2d 1148, 1149 (5th Cir.1976)). Therefore, Capital Connect’s contention that ADT’s declarations are “riddled with hearsay” is unfounded.

Regardless, “[a]t the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is ‘appropriate given the character and objectives of the injunctive proceeding.’” Levi Strauss & Co. v. Sunrise International Trading Inc., 51 F.3d 982, 985 (11th Cir.1985); accord Dixon, 835 F.2d at 558; Sierra Club, Lone Star, 992 F.2d at 551 (“[T]he district court can accept evidence in the form of deposition transcripts and affidavits.”). The court accepts ADT’s and Capital Connect’s evidence in the form of declarations and exhibits for purposes of ruling on this motion for a preliminary injunction.

2. There is no relevant factual dispute

Next, Capital Connect “hotly disputes” the facts at issue on this motion. Capital Connect’s Sur-reply at 1; Response at 18-20. Capital Connect argues that the court should not grant ADT’s motion for injunc-tive relief because it has disputed the facts ADT has alleged and the credibility of ADT’s declarations. Capital Connect’s Sur-reply at 1.

While the court may rely on otherwise inadmissible evidence at the preliminary injunction stage and may issue a preliminary injunction without the presentation of evidence, it can do so only when the facts are not disputed. Sierra Club, Lone Star, 992 F.2d at 551; Digital Generation, Inc. v. Boring, 869 F.Supp.2d 761, 777 (N.D.Tex.2012) (Lindsay, J.) (citing 13 Moore’s Federal Practice ¶ 65.23) (“Deciding controverted issues of fact based on affidavit testimony, however, especially affidavits containing hearsay-within-hearsay, is discouraged.”).

Federal Rule of Civil Procedure 65(a)(1) provides that “a preliminary injunction [may issue] only on notice to the adverse party.” When parties have raised relevant factual disputes concerning the preliminary injunction, courts have interpreted Fed. R. Civ. P. 65(a)(1) to require “a fair opportunity and a meaningful hearing to present them differing versions of those facts before a preliminary injunction may be granted.” PCI Transportation, 418 F.3d at 546; Kaepa, Inc. v. Achilles Corporation, 76 F.3d 624, 628 (5th Cir.), cert. denied, 519 U.S. 821, 117 S.Ct. 77, 136 L.Ed.2d 36 (1996); Marshall Durbin Farms, Inc. v. National Farmers Organization, Inc., 446 F.2d 353, 358 (5th Cir.1971) (“[T]he courts are more cautious about invoking the extraordinary remedy of the preliminary injunction where critical facts are in dispute.”). The Third Circuit, in Sims v. Greene, criticized a district court for not holding an evidentiary hearing to resolve apparently conflicting evidence in the parties’ submissions because it put the district court judge “in the position of preferring one piece of paper to another.” 161 F.2d 87, 88 (3d Cir.1947).

ADT, on the other hand, for the purposes of this motion admits Capital Connect’s presentation of the facts. ADT’s Sur-reply at 3. ADT argues that Capital Connect has tried to draw conflicting inferences from ADT’s proof but that Capital Connect does not dispute ADT’s evidence, which as ADT acknowledges, “would require the Court to convene a hearing and make credibility determinations.” ADT’s Reply at 9.

This Circuit permits the district court to rule on a motion for preliminary injunction without a hearing where no factual disputes are involved. Kaepa, 76 F.3d at 628 (“[i]f no factual dispute is involved, .. no oral hearing is required; under such circumstances the parties need only be given ‘ample opportunity to present their respective views of the legal issues involved.’ ”) (quoting Commerce Park at DFW Freeport v. Mardian Construction Co., 729 F.2d 334, 341 (5th Cir.1984)); see also PCI Transportation, 418 F.3d at 546; Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir.2009). The cases in which the Fifth Circuit has criticized district courts for ruling on an application for preliminary injunction without a hearing fall into two categories. First, the Fifth Circuit has disapproved of ruling on a preliminary injunction where the parties were not given a “fair opportunity” or did not receive sufficient notice before the court rendered its decision. See, e.g., Marshall Durbin Farms, 446 F.2d at-355-56 (finding inadequate notice in clear violation of Rule 65(a) after the district court scheduled a preliminary injunction hearing just days after the plaintiffs requested such relief); Parker v. Ryan, 960 F.2d 543, 544 (5th Cir.1992). Second, the Fifth Circuit has overturned a district court’s ruling on a motion for a preliminary injunction without a hearing where the parties disputed the central facts underlying the injunction. See Heil Trailer International Co. v. Kula, 542 Fed.Appx. 329, 334 & n. 17 (5th Cir.2013).

This case does not fall into either category. The Fifth Circuit approves of the resolution of preliminary injunctions without a hearing where the parties were given an opportunity to “present their differing versions” of the underlying facts and the district court determined that there were no disputes regarding the facts necessary to the resolution of the preliminary injunction. See PCI Transportation, 418 F.3d at 546 (district court resolved motion for a preliminary injunction without' a hearing where the plaintiff failed to put the underlying contract before the court); Commerce Park at DFW Freeport, 729 F.2d at 341; Esparza v. Board of Trustees, No. 98-CV-50907, 182 F.3d 915, 1999 WL 423109, at *3 (5th Cir. June 4, 1999) (“[J]ust because some facts are disputed, the court does not have to hold a hearing before ruling on a motion for a [preliminary injunction] unless‘the parties show there are material facts in dispute.”); see also Dixon, 835 F.2d at 558-59 (affirming grant of preliminary injunction without a hearing where adverse party failed to point to any convincing factual disputes material to the decision).

Capital Connect attacks the credibility of twelve of ADT’s declarants by attaching transcripts of recorded quality assurance calls. Response at 6-8, 15; Capital Connect’s Sur-reply at 1-3. Capital Connect offers proof that eleven of ADT’s declar-ants, ten of whom were the same declar-ants who had recorded quality assurance calls and signed Alarm Upgrade Agreements in which the customer denies any confusion about whether Capital Connect is affiliated with ADT by initialing next to the line in the contract. Capital Connect’s Sur-reply at- 3. Capital Connect further attacks the credibility of ADT’s evidence by pointing out that two customer declar-ants corrected the typed declaration through hand-written notes. Id. Additionally,. Capital Connect seeks to discredit the customer declarants, who stated, that the sales associate at issue was wearing some Capital Connect gear. Id. Lastly, Capital Connect criticizes the viability of the evidence introduced through ADT’s litigation manager as speculative and conclusory. Id. at 4 — 5.

Capital.Connect, however, does not argue that its sales force has not (1) claimed to have been affiliated with ADT, (2) misrepresented the quality of ADT’s equipr ment.to gain favor of the customers, (3) claimed that Capital Connect has bought out or taken over ADT, (4) stated that Capital Connect has purchased the customer’s account from ADT, (5) misrepresented that ADT have either gone out of business or left the loeal market, or (6) made' other misrepresentations or false statements. Motion at 4. Capital Connect’s arguments surrounding these issues are entirely legal in nature. For example, Capital Connect’s argument that it did not make the statements because it did not authorize the sales associates to make the statements is a legal argument addressed in Section Il.C.l.e below. It is true that Capital Connect disputes certain facts at issue ip the case and has raised credibility issues regarding roughly thirteen of ADT’s declarants. Response at 6-8, 15; Capital Connect’s Sur-reply at 1-3. However, the court finds that Capital Connect has failed to present any evidence contradicting ADT’s allegations that are central to the court’s resolution of the merits of ADT’s motion for preliminary injunction and has failed to attack the credibility of ADT’s remaining 55 declarants. Capital Connect does not aver that its sales associates did not make the alleged misrepresentations or did not utter the alleged false statements. Capital Connect had the opportunity to attach declarations to contradict ADT’s declarants’ report of the conversations, for example through declarations from its sales associates, to dispute the statements reported by ADT’s declarants. Capital Connect’s omission is fatal to its argument that it-has presented a factual dispute.

In McDonald’s Corporation v. Robertson, 147 F.3d 1301, 1308 (11th Cir.1998), the Eleventh Circuit provided guidance to the court in its resolution of a similar situation. In McDonald’s, the plaintiff filed a motion for preliminary injunction- for trademark infringement claims against one of its franchisees.' Id. at 1302-03. The plaintiff submitted affidavit testimony. Id. at 1311-13. The defendant sought to contest plaintiffs evidence, but failed to actually refute or deny any of the underlying allegations, only criticizing the claims as “fabrications]” and “exaggerat[ions]s”. Id. at 1308. The Eleventh Circuit affirmed the district court’s granting of the preliminary injunction without a hearing, finding that the parties’ briefing was sufficient because “material facts are not in dispute, or the disputed facts are not material -to the preliminary injunction sought.” Id. at 1313.

Here, the parties have had sufficient opportunity to present their respective versions of the facts underlying this dispute. As of August 13, 2015, the parties had notice that unless the court determine[d] that a hearing is necessary to resolve conflicts in the evidence or to make credibility determinations, the court would determine the'plaintiffs’ request for a preliminary injunction on affidavits and/or deposition and without a hearing, in accordance with Fed. R. Civ. P. 43(c). Order of August 13, 2015 (docket entry 51). This practice was approved by the Fifth Circuit in Kaepa. In Kaepa, where the district court did “not rely on any disputed facts,” no oral hearing was required and parties “need[ed] only be given ample opportunity to present their respective views of the legal issues involved.” 76 F.3d at 628 (internal quotations omitted). Capital Connect and ADT have been given ample opportunity to- present their respective views of the -legal issues involved. Anderson, 556 F.3d at 361 (finding the requirements of Fed R. Civ. P. 65(a)(1) met-where the district court allowéd extensive briefing without holding an evidentiary hearing); see Dixon, 835 F.2d at 558 (affirming district court’s ruling on preliminary injunction without a hearing where it based its findings of fact on “extensive evidence in the form of affidavits, several thousand pages of documents, business records of earnings, sworn statements, [and] admissions of defendant's”); Dearmore v. City of Garland, 237 F.R.D. 573, 579 (N.D.Tex. 2006) (Lindsay, J.) (finding that á hearing was not necessary where the issues were “strictly legal in nature,” and commenting that the court “would have not held a hearing, and would have decided the matter strictly on the written submissions of the parties” if it had been clear that there were no disputed facts), aff'd, 519 F.3d 517 (5th Cir.2008).

Therefore, the court will determine'the merits of the preliminary injunction without a hearing and will “not rely on any disputed facts” in its resolution of the motion basing its decision bn the record presented during the “extensive briefing” on the preliminary injunction. Anderson, 556 F.3d at 361.

C. Application

1. Likelihood of Success on the Merits

Section 43(a)(1)(A) makes liable, “[a]ny "person who ... .uses in commerce any word, term, name, symbol, or device, ... which ... is likely to cause confusion, or to cause mistake ... as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” 15 U.S.C. § 1125(a)(1)(A). To preliminarily enjoin Capital Connect, ADT must show that the use of Capital Connect’s sales tactics are “likely to cause confusion” among consumers as to the source, affiliation, or sponsorship of Capital Connect’s products or services. See id.; 15 U.S.C. § 1114(1); Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 663 (5th Cir.2000). A “likelihood of confusion” means that confusion is not just possible, but probable. Westchester, 214 F.3d at 663-64; see also Paulsson, 529 F.3d at 311 (holding that the district court correctly used the standard “more than a mere possibility of confusion”). The likelihood of confusion standard also governs ADT’s claims for unfair competition under Texas law. See id. at 663-64 n.1; Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188, 193 (5th Cir.1998).

ADT argues that Capital Connect has caused not only the likelihood of confusion but also actual confusion among home security customers as to the “source, affiliation, connection or sponsorship of its alarm services.” Motion at 14; Capital Connect’s sales tactics imply an association with ADT to procure business for another in a “bait-and-switch” move that baffles consumers. ADT LLC v. Vision Security, LLC, No. 13-CV-81197, 2014 WL 3764152, at *5 (S.D.Fla. July 30, 2014). The Lanham Act protects consumers from being misled by the use of “unfair practices by an imitating competitor.” Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 428, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003) (internal quotations omitted). The language of Section 43(a) is broader than much of the Lanham Act in that it “prohibits actions like trademark infringement that deceive consumers and impair a producer’s goodwill.” Dastar Corporation v. Twentieth Century Fox Film Corporation, 539 U.S. 23, 32, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003); accord Texas Tech University v. Spiegelberg, 461 F.Supp.2d 510, 523 (N.D.Tex.2006) (Cummings, J.).

a. Likelihood of Confusion

' The- critical question is whether the Capital Connect’s sales practices suggest affiliation or endorsement or false association. Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477, 484 (5th Cir.2004). In determining whether a likelihood of confusion exists, courts consider the following non-exhaustive list of factors: “(1) the type of mark allegedly infringed; (2) the similarity between the two marks; (3) the similarity of the products or services; (4)-the identity of retail outlets and purchasers; (5) the identity of the advertising media used; (6) the defendant’s intent; and (7) any evidence of actual confusion.” Id. at 484-85. “Courts also consider (8) the degree of care exercised by potential purchasers.” Board of Supervisors for Louisiana State University Agricultural & Mechanical College v. Smack Apparel Co., 550 F.3d 465, 478 (5th Cir.2008), cert. denied, 556 U.S. 1268, 129 S.Ct. 2759, 174 L.Ed.2d 247 (2009). No one factor , is dis-positive, and a finding of a likelihood of confusion does not. even require a positive finding on a majority of these “digits of confusion.” Elvis Presley, 141 F.3d at 194; Paulsson, 529 F.3d at 310. They do not apply mechanically to every case and can serve only as guides, not as an exact calculus. See Scott Fetzer, 381 F.3d at 485.

In analyzing the “likelihood of confusion,” a court should first-“consider the application of each digit in light of the specific circumstances of the case” and next “consider the marks in the context that a.customer perceives-them in the marketplace.” Scott Fetzer, 381 F.3d at 485. (quoting Elvis Presley, 141 F.3d at 197); accord Lyons Partnership v. Giannoulas, 179 F.3d 384, 389-90 (5th Cir.1999). The court finds that the digits of confusion weigh in favor of ADT. However, the court need not .closely analyze each factor here because the court finds that for purposes of a preliminary injunction, ADT has adequately offered sufficient evidence of actual confusion, among other indicia of confusion, in the relevant market. See Amstar Corporation v. Domino’s Pizza, Inc., 615 F.2d 252, 263 (5th Cir.) (holding that actual confusion evidence is the “best evidence of likelihood of confusion”), cert. denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980).

b. Actual Confusion

Evidence of actual confusion is not necessary to a finding of a likelihood of confusion, but “it is nevertheless the best evidence of likelihood-of confusion.” Amstar Corporation, 615 F.2d at 263. To show actual confusion, a plaintiff may rely on anecdotal instances of consumer confusion, see Moore Business Forms, Inc. v. Ryu, 960 F.2d 486, 491 (5th Cir.1992), or consumer surveys, see Exxon Corporation v. Texas Motor Exchange of Houston, Inc., 628 F.2d 500, 506 (5th Cir.1980); Scott Fetzer, 381 F.3d at 486.

Capital Connect argues that ADT has not reported nearly enough instances of confusion given the size of the market. See Response at 14, 22-23 (citing Holland America Insurance Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir.1985) (va-eating district court’s grant of -injunctive relief where the only evidence was one employee affidavit speculating about the potential of numerous lawsuits); 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1248-49 (10th Cir.2013) (concluding that 1.5% of consumers was insufficient évidence to create a genuine issue of fact on motion for summary judgment in an Internet dispute where the exact number of impressions and clicks was calculated by a search engine)). In contrast to the cases on which Capital Connect relies, ADT offers, among other evidence, 55 declarations (the veracity of which Capital Connect does not challenge), four local news reports (whose authenticity Capital Connect does not dispute), and an employee affidavit regarding 269 complaints processed in 2015.

Very little evidence, however, is required to establish the existence of the actual confusion factor. Jellibeans, Incorporated v. Skating Clubs of Georgia, Inc., 716 F.2d 833, 845 (11th Cir.1983); see also World Carpets, Inc. v. Dick Littrell’s New World Carpets, 438 F.2d 482, 489 (5th Cir.1971); AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1544 (11th Cir.1986) (“It is likely that many consumers who were confused never realized they had been confused and that many of those who did realize they had been confused chose not to spend the time to register a complaint with a faceless corporation —”), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 822 (1987). Furthermore, “an almost overwhelming amount of proof would be necessary to refute” proof of actual confusion. Dick Littrell’s New World Carpets, 438 F.2d at 489 (“[R]eason tells us that ... very little proof of actual confusion would be necessary to prove the likelihood of confusion.”); Fuji Photo Film Co., Inc. v. Shinohara Shoji Kabushiki Kaisha; 754 F.2d 591, 597 (5th Cir.1985) (“In no case have we sanctioned total disregard of evidence of actual confusion; there is- simply no precedent for such a view....”); Soweco, Inc. v. Shell Oil Company, 617 F.2d 1178, 1186 (5th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1516, 67 L.Ed.2d 816 (1981).

The evidence that ADT has submitted shows “more than fleeting mix-up of names.” Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 230 (5th Cir.2009). The- confusion presented in -the affidavits shows actual confusion about what entity the -sale’s associate at the door represented, with what entity the sales associate was-'affiliated, how the sales associate came to arrive at the- door, and the purpose for which he/she was at the door. See ADT’s Appendix; ADT’s Supp. Appendix; ADT’s Second Supp. Appendix; ADT’s Third Supp. Appendix. Capital Connect argues that customer affidavits are not reliable because they are received by “interested sources” and there is no opportunity to.cross-examine the.confused individuals. Capital Copnect’s Sur-reply at 4 (citing A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 227 (3d Cir.2000) (affirming district court’s finding that four examples of confusion was insufficient evidence of actual confusion)). The Third Circuit, however, distinguished Victoria’s Secret from a preliminary injunction to enforce the Lanham Act, finding that reliance on customer complaints in declarations on a motion for preliminary injunction was appropriate, whereas in Victoria’s Secret, the court had found deficient the use of only four customer declarations as proof of actual confusion on a motion for summary judgment. See Ar-rowpoint Capital Corporation v. Arrowpoint Asset Management, LLC, 793 F.3d 313, 325 (3d Cir.2015).

Capital Connect argues that it has also called into question the credibility of roughly thirteen declarations with, its transcripts of telephone calls with the customer, signed upgrade agreements disclaiming association between ADT and Capital Connect, and questioning the customer handwritten edits on the declarations. See Response at 6-8, 15; Capital Connect’s Sur-reply at 1-3. For purposes of the preliminary injunction, the court will ignore those declarations to avoid a potential factual dispute. The court finds, however, that-the remaining 55 declarations, whose credibility has not been questioned, the four local news reports, and the 269 customer complaints cited by the ADT representative provide ample evidence to support a finding of actual confusion in the market. Second Gold Decl. ¶ 3; see Xtreme Lashes, 576 F.3d at 230 (“To ignore this evidence as anecdotal or irrational tramples upon the province of the trier of fact.”); Half Price Books, Records, Magazines, Inc. v. Barnesandnoble.com, LLC, No. 3:02-CV-2518-G, 2003 WL 23175436, at *5 (N.D.Tex. Aug. 15, 2003) (Fish, Chief J.). Since there-is- actual-confusion, ADT has satisfied the “likelihood of confusion” element of the § 1125(a)(1)(A) preliminary-injunction analysis. Soweco, 617 F.2d at 1186 (“Actual confusion is, however, strong proof-that the likelihood of confusion exists”).

c. Reasonably Prudent Purchaser

Capital Connect argues that ÁDT has failed to prove that it has a substantial likelihood of success on the merits of this casé because the confused customers in the declarations fail' to pass the reasonably prudent purchaser standard. See Response at 20-23. Capital Connect urges that it has established various preventative measures to-prevent any customer confusion, including -requiring its sales force to wear Capital Connect gear and to obtain signed waiver agreements informing the customer of the absence of any affiliation with ADT. Id. It reasons that if the customer is confused, as the. declarants claim to be, then they fail, the reasonably prudent purchaser standard and ADT will not likely succeed on. the merits. Id.

Courts recognize that ’ customers are more likely tó be confused whére the products or services are closely related. See Davis v. Walt Disney Co., 430 F.3d 901, 904 (8th Cir.2005), cert. denied, 547 U.S. 1159, 126 S.Ct. 2303, 164 L.Ed.2d 834 (2006); North American Medical Corporation v. Axiom Worldwide, Inc., 522 F.3d 1211, 1222 (11th Cir.2008). Further, courts are aware of the fact that where there is an “explicit representation of a relationship” between the violator and the claimant, a customer is more likely to be confused. See Axiom Worldwide, Inc., 522 F.3d at 1223. Here, only a few customer declarants claimed that the Capital Connect’s sales associate actually pretended to be an ADT agent. ADT’s Reply at 4. Most maintained that the Capital Connect sales associate claimed some affiliation with ADT. Id. Therefore, the presence of Capital Connect’s gear does not persuade the court to conclude that any confused customer who sees the gear but is still confused as to Capital Connect’s affiliation with ADT must not be a prudent consumer.

Additionally in Better Business Bureau, 681 F.2d at 403, the Fifth Circuit noted that where one implies that he is “acting at the behest” or “under the direction” of another, and this “impression is reinforced by the context in which the representations were made,” there is a strong inference of endorsement and thereby confusion. Therefore, situations and phrases that may seem clear to observers in the abstract may nevertheless, in context, be confusing to a reasonably prudent consumer.

Despite the protective measures Capital Connect claims to have implemented, the declarants are actually confused by Capital Connect’s sales tactics and the law understands the reasonableness of consumer confusion in similar situations. Id. Therefore, the court finds that for the purposes of the motion for a preliminary injunction, ADT has sufficiently shown actual confusion of reasonably prudent purchasers.

d Initial Interest Confusion

In its response and sur-reply to ADT’s motion for preliminary injunction, Capital Connect submits proof that it notified roughly a dozen customers, through disclaimers in its agreement and a telephone call, that it is not affiliated in any way with ADT. Response at 6, 8, and 21. In its reply, ADT cites cases that discuss the “initial interest confusion” doctrine. ADT’s Reply at 5. The initial interest confusion doctrine applies when “the Lanham Act forbids a competitor from luring potential customers away from a producer by initially passing off its goods as those of the producer’s, even if confusion as to the source of the goods is dispelled by the time any sales are consummated.” Dorr-Oliver, Inc. v. Fluid-Quip, Inc., 94 F.3d 376, 382 (7th Cir.1996). This “bait and switch” technique allows competitors to get a foot in the door and engage the customer by using the goodwill established by the senior user to break the ice. Id.; Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 523 F.2d 1331, 1342 (2d Cir.1975).

In its sur-reply, Capital Connect argues, inter alia, (1) that the initial interest confusion doctrine does not apply here; (2) that if it does apply, it is a de minimis factor; and (3) that “a recent Supreme Court decision brings into serious question the continued viability of initial confusion as a theory of liability.” Capital Connect’s Sur-reply at 5-10. Some scholars have criticized the “initial interest confusion” doctrine because they argue the senior user has not suffered any economic harm if the confusion is dispelled by the time of the transaction ends. See, e.g., Deborah R. Gerhardt, Lexmark and the Death of Initial Interest Confusion, 7 Landslide 22, 27 (2014); Jennifer E. Rothman, Initial Interest Confusion: Standing at the Crossroads of Trademark Law, 27 Cardozo L. Rev. 105, 189-91 (2005). In Lexmark International, Inc. v. Static Control Components, Inc., — U.S. —, 134 S.Ct. 1377, 1391, 188 L.Ed.2d 392 (2014), the Supreme Court case cited by Capital Connect, the Court stated that “a plaintiff suing under 1125(a) ordinarily must show economic or reputational injury flowing directly from the deception wrought by the defendant’s advertising; and that occurs when deception of consumers causes them to withhold trade from the plaintiff.” Professor Ger-hardt predicts that the result reached in Lexmark will lead to the end of the initial interest doctrine. See Gerhardt, Lexmark, 27 Cardozo at 189. No court has taken the statement in Lexmark to apply to the initial interest confusion doctrine or unfair competition claims generally, as Capital Connect suggests this court should. The excerpt in Lexmark comes from a section of the opinion in which the Supreme Court holds that the proximate causation principle from common law torts applies to a Section 43(a) claim, thus narrowing the class of third parties who can claim to have been injured by a Lanham Act violation. Lexmark, 134 S.Ct. at 1390-91. It does not directly relate to the issue before the court here.

Today, the initial interest doctrine most often appears in Lanham Act disputes based on Internet browsing, metatags, and how well websites are labeled when a user is moving from one website to another. See, e.g., Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137, 1147 (9th Cir.2011); Playboy Enterprises, Inc. v. Netscape Communications Corporation, 354 F.3d 1020, 1027 (9th Cir.2004)).

The Fifth Circuit still recognizes the doctrine, although it has not faced the question of whether it is still valid after Lexmark. Elvis Presley, 141 F.3d at 204 (“Infringement can be based upon confusion that creates initial consumer interest, even though no actual sale is finally completed as a result of the confusion.”); National Business Forms & Printing, Inc. v. Ford Motor Company, 671 F.3d 526, 532 (5th Cir.2012) (“Actual confusion that is later dissipated by further inspection of the goods, services, or premises, as well as post-sale confusion, is relevant to a determination of a likelihood of confusion.”); John Crane Production Solutions, Inc. v. R2R and D, LLC, 861 F.Supp.2d 792, 799-800 (N.D.Tex.2012) (Fitzwater, Chief J.).

The court concludes that initial interest confusion still appears to be a valid theory under Fifth Circuit law, and that the Supreme Court’s analysis in Lexmark did not abrogate the theory. Here, however, the court does not base its “likelihood of confusion” analysis on the viability of the initial interest confusion doctrine, although ADT’s consumers’ “initial interest confusion” is relevant to the court’s determination of a likelihood of confusion. Elvis Presley, 141 F.3d at 204. The court concludes that ADT has carried its burden of proving “likelihood of confusion” by producing sufficient evidence that Capital Connect’s false sales pitches actually confuse customers into thinking there is some affiliation with ADT or that ADT’s equipment is faulty. See Elvis Presley, 141 F.3d at 204; Ford Motor Company, 671 F.3d at 532.

e. Vicarious Liability

Capital Connect argues that it is not “liable for the unauthorized conduct of independent contractors.” Response at 18-20. Capital Connect’s argument is that the sales force that is going door-to-door selling its services consists of independent contractors, not employees. Id. Therefore, according to Capital Connect, it is not liable unless ADT can prove that Capital Connect authorized its independent contractors to act in the manner ADT has alleged. Id. Moreover, Capital Connect offers proof of its training, training manual, and other rules it implements to assure that- its sales force does not violate the Lanham Act or other laws throughout the jurisdictions in which it operates. Id.

ADT argues that Capital' Connect is liable for the conduct of its sales force, whether classified as employees or independent contractors, because the sales force consists of agents under Capital Connect’s control as principal. ADT’s Reply at 10-11.

“The essential element of an agency relationship is the right of control.” In re Carotin Paxson Advertising, Inc., 938 F.2d 595, 598 (5th Cir.1991). As ADT argues, Capital Connect’s briefing establishes that Capital Connect exerts control over its sales force. Response at 4-6, 18-20. Capital Connect offers proof that (a) it requires its sales force to wear Capital Connect gear (Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 449-50, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003) (holding that whether an organization can hire or fire or set the rules and regulations of the, individual’s work is relevant to whether one is an employee); (b) it requires its sales force to complete, training (Mares v. Marsh, 777 F.2d 1066, 1068 (5th Cir.1985) (finding that training. suggests an employment relationship); (c) it requires its sales force to sign a Code of Conduct (Wells, 538 U.S. at 449-50, 123 S.Ct. 1673); (d) it requires its sales force to wear a Capital Connect badge (id.); (e) it requires its sales force to obey its sales rules (id.); and (f) it punishes its sales force if it violates any of these provisions (id.). Response at 4-6, 18-20. Thus, whether the sales force be labeled independent contractors or employees for purposes of this motion for preliminary injunction, the evidence before the court clearly shows that Capital Connect has the right to control its sales force. Hopkins v. Cornerstone America, 545 F.3d 338, 347-48 (5th Cir.2008), cert. denied, 556 U.S. 1129, 129 S.Ct. 1635, 173 L.Ed.2d 998 (2009); Brock v. Mr. W Fireworks, 814 F.2d 1042, 1049 (5th Cir.) (“subjective beliefs cannot transmogrify objective economic realities”), cert. denied, 484 U.S. 924, 108 S.Ct. 286, 98 L.Ed.2d 246 (1987); In re Carolin Paxson, 938 F.2d at 598.

Anything that occurs during the sales pitch of the sales associate is clearly within the scope of the agency, as it is the central purpose of the principal-agency relationship here. Celtic Life Insurance Company v. Coats, 885 S.W.2d 96, 99 (Tex.1994) (holding that a principal cannot escape liability by claiming that it did not authorize misrepresentations occurring before a sale and that such , misrepresentation occurred within the scope of agency); Morrow v. Daniel, 367 S.W.2d 715, 718 (Tex.Civ.App.-Dallas 1963, no writ) (same).

Capital Connect’s argument that it escapes liability unless ADT proved that Capital Connect authorized the misleading or false representations fails because it is clear that Capital Connect has the right to control the actions of its sales force, whether the sales personnel are classified as employees or independent contractors. See Meyer v. Holley, 537 U.S. 280, 285-86, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003); see also Potomac Conference Corporation of Seventh-day Adventists v. Takoma Academy Alumni Association, Inc., 2 F.Supp.3d 758, 770-71 (D.Md.2014) (finding a president of an association liable for the actions of the association in Lanham Act context where the president exercised control and guidance for the association’s actions). Capital Connect is hable for the actions of its sales, associates, who are its agents, operating within the scope of that agency. See Playboy Enterprises, Inc. v. Webbworld, Inc., 991 F.Supp. 543, 553-54 (N.D.Tex.1997) (Sanders, J.) (holding an employer liable for an employee’s infringement where the former had supervisory authority over the latter’s activities), aff'd, 168 F.3d 486 (5th Cir.1999).

f. Misleading Use of “Upgrade” and “Update”

ADT alleges that Capital Connect misleads customers, among other'tactics, by falsely associating itself, with ADT through the use of the terms “upgrade” and “update.” Motion at 3-4. ADT claims that Capital Connect’s sales force comes to their customers’ homes and-asserts their systems need to be “updated” or “upgraded”. Id. Customers report that this practice confused them, as they inferred this meant the sales associate was affiliated with ADT. Id.; see, e.g., ADT’s Third Supp. Appendix, Exhibit 1C, Appendix_000018-20, Declaration of Florence Allen ¶ 5 (“He told me he was at my home to upgrade my alarm equipment.”); ADT’s Third Supp. Appendix, Exhibit 10, Appendix_000071-73, Declaration of Jose Aviles ¶6 (“The representative told me that Capital was an ADT affiliate there to upgrade my alarm panel for free.”); ADT’s Third Supp. Appendix, Exhibit 1AA, Appendix_000106-108, Declaration of Pauline Pedroza ¶ 6 (“The representative stated that he was there to upgrade my keypad.”).

Capital Connect contends that the terms “upgrade” and “update” are not misleading or false and that the use of them during a sales pitch is not a violation of the Lanham Act.- Response at 23-24. In Stokely-Van Camp, Inc. v. Coca-Cola Company, 646 F.Supp.2d 510, 529 (S.D.N.Y.2009), a- district judge in the Southern District of New York' held that Powerade’s use' of the phrase “Upgrade your formula. Upgrade your Game” on its labels was not “literally false” or “false by necessary implication” because reasonable consumers could interpret the phrase- to compare Powerade to Gatorade, or could compare this new Powerade drink to older Powerade drinks. On the other hand, in Volkswagenwerk Aktiengesellschaft v. Church, 411 F.2d 350, 352 (9th Cir.1969), supplemented, 413 F.2d 1126 (9th Cir.1969); the Ninth Circuit noted that a Volkswagen repair specialist could use the VW mark in1 his advertisements, but he “must not do so in a manner which is likely to suggest to his prospective customers that he is part of Volkswagen’s organization of franchised' dealers and repairmen.” The key analysis is whether the use of any term, or any protected mark leads to a “likelihood of confusion” surrounding the context of the alleged misleading use. Better Business Bureau, 681 F.2d at 403 (holding that the false impression' “is reinforced by the context in’ which the representations were made”). Here, Capital Connect’s sales associates approach a door, mention “upgrade” or “update,” and refer to the security alarm system already installed, implying a relationship with ADT. See Mary Kay, Inc. v. Weber, 661 F.Supp.2d 632, 644 (N.D.Tex.2009) (concluding that by using language that suggests that the defendants act as an “outlet” for Mary Kay independent beauty consultants, they imply a relationship between the defendants and those Mary Kay consultants). Showing a knowledge of the- pre-existing security alarm system and referencing the alarm system as needing an upgrade leads a rational person to conclude that the salesperson is in some way affiliated with the pre-exist-ing alarm service provider. As in Volks-wagenwerk or Better Business Bureau, the context of the verbal exchange “reinforce[s]” the false inference made by the consumer. Better Business Bureau, 681 F.2d at 403; Volkswagenwerk, 411 F.2d at 352.

No matter whether the statements at issue are-ambiguous or true but misleading, the plaintiff must present evidence of actual deception. See Pizza Hut, Inc. v. Papa John’s International, Inc., 227 F.3d 489, 497 (5th Cir.2000), cert. denied, 532 U.S. 920, 121 S.Ct. 1355, 149 L.Ed.2d 285 (2001); American Council of Certified Podiatric Physicians & Surgeons v. American Board of Podiatric Surgery, Inc., 185 F.3d 606, 616 (6th Cir.1999); Johnson & Johnson * Merck Consumer Pharmaceuticals Company v. Smithkline Beecham Corporation, 960 F.2d 294, 297 (2d Cir.1992) (stating that when a “plaintiffs theory of recovery is premised upon a claim of implied falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged commercials tend to mislead or confuse”); Avila v. Rubin, 84 F.3d 222, 227 (7th Cir.1996). By the declarations of dozens of customers confused by the use of the terms “upgrade” and “update,” as well as four news reports citing the misleading statements, ADT has shown actual deception in that “consumers were actually deceived by the defendant’s ambiguous or true-but-misleading statements.” Pizza Hut, 227 F.3d at 497 (quoting American Council, 185 F.3d at 616).

To recapitulate, for purposes of the present motion, ADT has offered sufficient evidence of actual confusion resulting from Capital Connect’s use of the terms “upgrade” and “update” in the context of door-to-door sales pitches to warrant the suspension of the practice pending a resolution of the case on the merits. ADT has satisfied the court that there is substantial likelihood that [it] will ultimately prevail on the merits. See Paulsson, 529 F.3d at 309.

2. Irreparable Harm

The analysis for determining whether harm is irreparable encapsulates the purpose of a preliminary injunction. An injury is generally considered to be irreparable if the injury cannot be undone through ihonetary relief. Enterprise International, Inc. v. Corporacion Estatal Pe-trolera Ecuatoriana, 762 F.2d 464, 472-73 (5th Cir.1985) (stating the “possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weigh[s] heavily against a claim of irreparable harm”). An injunction is appropriate only if the anticipated injury is imminent and irreparable. Chacon v. Granata, 515 F.2d 922, 925 (5th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 279, 46 L.Ed.2d 258 (1975).

If ’determining the amount of damage would be extremely difficult, the court can consider the harm irreparable. ICEE Distributors, Inc. v. J & J Snack Foods Corporation, 325 F.3d 586, 597 (5th Cir.2003); Wilkinson v. Manpower, Inc., 531 F.2d 712, 714 (5th Cir.1976). To be considered irreparable, the injury in question must imminent and cannot be speculative. Watson v. Federal Emergency Management Agency, 437 F.Supp.2d 638, 648 (S.D.Tex.2006), vacated, 2006 WL 3420613 (5th Cir.2006).

a. Presumption

ADT argues that for “the purposes of awarding a preliminary injunction in a Lanham Act case, irreparable injury is presumed once the plaintiff has shown a likelihood of confusion.” Motion at 15 (citing Abraham v. Alpha Chi Omega, 708 F.3d 614, 627 (5th Cir.), cert. denied, — U.S. —, 134 S.Ct. 88, 187 L.Ed.2d 254 (2013); accord, e.g., S & H Industries, Inc. v. Selander, 932 F.Supp.2d 754, 765 (N.D.Tex.2013) (Lynn, J.); Mary Kay, 661 F.Supp.2d at 640; Hawkins Pro-Cuts v. DJT Hair, No. 3:96-CV-1728-R, 1997 WL 446458, at *7 (N.D.Tex. July 25, 1997) (Buchmeyer, Chief J.); see also Clearline Technologies Limited v. Cooper B-Line, Inc., 948 F.Supp.2d 691, 715 (S.D.Tex.2013) (presumption of irreparable harm most appropriate in cases involving direct competitors)).

Capital Connect responds that there is no presumption of• irreparable harm. Response at 11, 14 (citing Ellipse Communications, Inc. v. Caven, No. 3:07-CV-1922-0, 2009 WL 497268, at *1 (N.D.Tex. Feb. 26, 2009) (O’Connor, J.) (“the Fifth Circuit has avoided expressly adopting a presumption of irreparable injury.”)).

Historically, upon a showing of likelihood of confusion in Lanham Act preliminary injunction suits, • courts have presumed a showing of irreparable harm. See, e.g., Camel Hair and Cashmere Institute of America, Inc. v. Associated Dry Goods Corporation, 799 F.2d 6, 14 (1st Cir.1986); McNeil-PPC, Inc. v. Pfizer Inc., 351 F.Supp.2d 226, 250 (S.D.N.Y.2005). However, three recent United States Supreme Court cases, one of which involved a Lan-ham Act claim, have counseled against presuming an irreparable injury on a motion for a preliminary injunction. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 393, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (rejecting a perceived “categorical” rule under Federal Circuit precedent that where a patent had been infringed, án injunction would issue presuming irreparable harm); Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (holding that a possibility of irreparable harm was “too lenient” and that the “plaintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction”) (emphasis in original); Lexmark, 134 S.Ct. at 1395 (stating that while the plaintiff alleged enough to proceed under § 1125(a), it could not obtain relief “without evidence of injury proximately caused by Lexmark’s alleged misrepresentations”) (emphasis in original). Following those decisions, many circuits have abandoned the presumption of irreparable harm in suits seeking a preliminary injunction under the Lanham Act. See, e.g., Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 161 (2d Cir.2007); PBM Products, LLC v. Mead Johnson & Co., 639 F.3d 111, 126-27 (4th Cir.2011); Herb Reed Enterprises, LLC v.. Florida Entertainment Management, Inc., 736 F.3d 1239, 1249-51 (9th Cir.2013); Axiom Worldwide, Inc., 522 F.3d at 1227.

Some Fifth Circuit rulings continue to recognize the presumption. Abraham, 708 F.3d at 626-27 (“[a]ll that must be proven to establish liability and the need for an injunction against infringement is the likelihood of confusion — injury is presumed”); Clearline Technologies, 948 F.Supp.2d at 707-08; Southern Snow Manufacturing Co., Inc. v. SnoWizard Holdings, Inc., No. 06-CV-9170, 2014 WL 1652436, at *9 (E.D.La. Apr. 24, 2014). Other courts have avoided “expressly adopting this presumption of irreparable injury.” Paulsson, 529 F.3d at 312; BuzzBallz, LLC v. JEM Beverage Company, LLC, No. 3:15-CV-0588-L, 2015 WL 3948757, at *6 (N.D.Tex. June 26, 2015) (Lindsay, J.); T-Mobile US, Inc. v. AIO Wireless LLC, 991 F.Supp.2d 888, 927-29 (S.D.Tex.2014). A recent Fifth Circuit case affirmed a Western District of Texas decision that had abandoned the presumption