TWTB, Inc. v. Rampick (152 F. Supp. 3d 549, 2016)

ORDER

NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE

In this litigation, Plaintiffs TWTB, Inc. (“TWTB”) and Frank Eugene Raper (“Raper”) (collectively “Plaintiffs”) allege that Defendant Bruce Rampiek (“Rampiek”) violated his fiduciary duties as a .director, officer, and shareholder of TWTB, LRSBR, LLC (“LRSBR”), which was formed by Rampiek, has filed a third party complaint against TWTB for trademark infringement. TWTB has filed a cross-claim . against LRSBR alleging that LRSBR breached its trademark License Agreement. Pending before the Court is LRSBR’s “Motion for Preliminary Injunction,” in which LRSBR requests that the Court enjoin TWTB from using its registered and unregistered trademarks and seeks attorneys’ fees. Haying reviewed the motion, the memoranda in support, the memorandum in opposition, the evidence, and the applicable law, the Court will grant the motion in part and deny it in part.

I. Background

A. Factual Background

In their complaint, Plaintiffs allege that TWTB was lawfully created' on or about September 17, 1992. TWTB is 50.5% owned by Rampiek, 24.75% owned by Raper, and 24.75% owned by the Joseph E. and Janice V. Anthony Trust (“Anthony).” The primary'business purpose of the creation of TWTB was to create an ongoing restaurant and bar establishment known as “Lucy’s Retired Surfer’s Bar & Restaurant,” located at 701 Tchoupitoulas Streét in New Orleans, Louisiana. In or about June 2012, TWTB adopted its current bylaws and the Shareholders’ Agreement. At that time, Rampiek was the president of TWTB, as well as a director and shareholder. TWTB also entered into a trademark License Agreement in June 2012 with LRSBR, pursuant to which LRSBR licensed TWTB to use trademarks owned by LRSBR, including “the federally registered trademarks ’Retired Surfers Bar and Restaurant’ and ’Salt Water Wash Only* and all other tradenames, trademarks, service marks, marks or terms... owned by Licensor its successors arid assigns.”

Plaintiffs allege that Raper was notified in or about October or November 2014 of alleged violations of Rampick’s fiduciary duties to TWTB and that an investigation was undertaken. Plaintiffs allege that on January 11, 2015, based upon the findings of the investigation, it was determined by the Board of Directors that Rampiek had violated his fiduciary duties to TWTB and that those determinations gave rise to “Just Causé,” as defined in the by-laws, to remove Rampiek from his office as President and remove him from the Board of Directors.

On May 26, 2016, LRSBR allegedly notified TWTB, by letter, of at least four material breaches of the License Agreement, pursuant to which TWTB had 30 days to cure the alleged breaches. On June 11, 2015, counsel for TWTB replied to the letter. LRSBR alleges that on August 24, 2015, LRSBR terminated the License Agreement “due to TWTB’s failure to cure the material breaches -of the Agreement identified in the May 26 letter.” LRSBR contends that despite the termination of the License Agreement, TWTB continues to use the trademarks owned by LRSBR.

B. Procedural Background

On August 11, 2015, TWTB and Raper filed a complaint against Rampick, alleging, inter alia, that Rampick stole money and other assets from TWTB. On September 25, 2015, LRSBR moved for leave to intervene, which was granted on October 2, 2015. LRSBR filed its third party complaint alleging trademark infringement against TWTB on October 2, 2015. On November 6, 2015, TWTB filed an answer and cross-claim against LRSBR for breach of contract, alleging that LRSBR had committed a breach of the trademark License Agreement.

LRSBR filed the instant motion on October 16, 2015. TWTB filed an opposition on November 17, 2015. With leave of court, LRSBR filed a reply on November 23, 2015. The Court held an evidentiary hearing on December 8, 2015.

II. Parties’ Arguments

A. LRSBR’s Arguments in Support of Preliminary Injunctive Relief and Attornegs’ Fees

LRSBR moves for (1) a preliminary injunction enjoining TWTB “from further infringement of the Lucy’s trademarks” and (2) reasonable attorneys’ fees and costs incurred in the preparation and filing of their motion. LRSBR contends that it meets all four elements required for a preliminary injunction.

First, LRSBR contends that there is a substantial likelihood that it will succeed on its trademark infringement claims against TWTB concerning: (1) infringement of its registered trademarks; and (2) infringement of the unregistered “Lucy’s” mark and TWTB’s unregistered surfer bar trade dress. LRSBR essentially argues that: (1) TWTB’s use of the word “Lucy’s” constitutes trademark infringement of LRSBR’s registered trademarks; (2) TWTB’s use of the word “Lucy’s” constitutes trademark infringement because LRSBR has a valid unregistered trademark in the word “Lucy’s”; and (3) TWTB’s use of the surfer bar trade dress constitutes trade dress infringement.

Second, LRSBR asserts that TWTB is causing injuries that cannot be fully redressed by money damages because TWTB is damaging the goodwill .in the Lucy’s marks and preventing LRSBR from making use of the marks.' Third, LRSBR contends that the balance of harms is overwhelmingly in its favor because “an injunction will only-force TWTB to do what both trademark law and the License Agreement require.” Fourth, LRSBR avers that TWTB is confusing consumers and an injunction that stops such confusion is in the public interest.

LRSBR also moves for attorneys’ fees and costs, asserting that under the Federal Trademark Act, a court may award reasonable attorneys’ fees in exceptional cases. LRSBR contends that TWTB is willfully infringing the Lucy’s marks and has effectively .stolen the Lucy’s brand, and therefore LRSBR is entitled to an award of attorney’s fees and costs.

B. TWTB’s Arguments in Opposition to Preliminary Injunctive Relief and Attorneys' Fees

TWTB agrees that in order to succeed on its motion for a preliminary injunction, LRSBR must prove the four elements addressed by LRSBR. Citing the Fifth Circuit in Lake Charles Diesel, Inc. v. General Motors Corp., TWTB contends that a “preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion’ on all four requirements.”

First, TWTB contends that LRSBR cannot show that it has a substantial likelihood of success on the' merits. TWTB asserts that although ‘LRSBR owns its registered trademarks, it does not own any trade dress, ’1 nor does' it own the word “Lucy’s.” Furthermore, TWTB asserts that LRSBR cannot show that there is a likelihood of confusion between LRSBR’s marks and the phrases and images utilized by TWTB; in part, because “[t]heré is no evidence that LRSBR and TWTB are actually in competition.”

Second, in opposition to LRSBR’s claim .that there is a substantial threat of irreparable injury, TWTB asserts that “[a]n injunction is a harsh,- dramatic, and extraordinary remedy, and should only issue where the party seeking it is threatened with irreparable lo[s]s of injury without adequate remedy at law.” TWTB contends that LRSBR has offered no evidence to support its,, sweeping statements that LRSBR is damaging the goodwill associated with LRSBR’s trademarks.

Third, 'turning to - the weighing of the harms, TWTB asserts that the damage that it would suffer if the Court were to grant LRSBR’s request would be “truly catastrophic.” TWTB avers that its lease requires it to operate a restaurant and bar using the name “Lucy’s” and if it could no longer use that name, the landlord could allege that it is in default of its. obligations under the lease. Fourth, TWTB asserts that an injunction will disserve the public interest as it will “restrict free trade in Louisiana and will essentially eliminate TWTB’s ability to do business, despite the fact that TWTB has undertaken in good faith a tremendous effort and cost to ensure 'that it in no way violates any of LRSBR’s trademarks.”

TWTB also contends that in the event that the Court finds that LRSBR is entitled to injunctive relief, LRSBR’s motion for attorneys’ fees and costs should be denied because the evidence shows that TWTB has made “every effort not to infringe on"- LRSBR’s trademarks” and therefore the case cannot be said to be exceptional.

C. Evidentiary Hearing Testimony

In support of its motion for a preliminary injuhction, LRSBR" called as witnesses: (1) Gary Wollerman (“Woller-man”), an individual with over 40 years of experience in the New Orléans restaurant business; (2) Defendant Bruce Rampick; (3) Sarah Campbell (“Campbell”), former events manager and general manager of the Lucy’s Retired Surfer’s Bar & Restaurant in New Orleans; (4) Dave Dillen (“Dil-len”), another former general manager of the Lucy’s Retired Surfer’s Bar & Restau"rant in New Orleans; and (5) "Virginia Saussy (“Saussy”), a marketing consultant who was -previously retained by Rampick to work with -the Lucy’s Retired Surfer’s Bar & Restaurant business.

In opposition, TWTB called as witnesses: (1) Plaintiff Frank Eugene Raper; and (2) Deborah Schumacher (“Schumacher”), the general manager at Lucy’s who was responsible for removing any LRSBR-owned federally registered trademarks from the business.

III. Preliminary Injunction

A, Standard for Preliminary Injunction

A preliminary injunction "is an “extraordinary remedy which should not be granted unless thé party seeking it has ’clearly carried the burden of persuasion’ ” on all required elements. Four elements must be proven before a court will issue a preliminary injunction: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the "injunction is denied; (3) the threatened injury to the movant outweighs the injury to the- nonmovant; and (4) granting the injunction will- not disserve the public interest.--If the-movant fails to meet its burden regarding any one of the necessary elements, a- court need not address the other elements necessary -for granting a preliminary injunction. At all -times, the burden of persuasion remains on the mov-ant as to each ■ of these four elements. Whether to grant or to deny a preliminary injunction is within the discretion of the trial court, but “[tjhe decision to grant a preliminary injunction is to be treated as the exception rather than the rule.”

B. Objections to Testimony

As an initial matter, the Court notes that during the evidentiary hearing, TWTB . moved to strike the testimony of Gary Wollerman and objected to the testimony of Virginia Saussy, on the grounds that LRSBR had not complied with the requirements of Federal Rule of Civil Procedure 26 and therefore neither of the witnesses could be offered as experts. In opposition, LRSBR asserted that TWTB had notice that Wollerman and Saussy would be offered as experts because both witnesses were referred to as experts in LRSBR’s briefs.

1. Applicable Law

Federal Rule of Civil Procedure 26 requires parties to disclose the identity of any witness that it may use at trial to present expert opinion evidence. under Federal Rule of Evidence 702, 703, or 705. Rule 26 requires that “[ujnless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” If the witness is not required to provide a written report, the disclosure must state the subject matter on which the witness is expected to present evidence as well as provide a summary of the facts and opinions to which the witness is expected to testify. Rule 26 states that “[ajbsent a stipulation or a court order,” expert testimony disclosures must be made “at least 90 days before the date set for trial or for the case to be ready for trial.”

2. Analysis

During the evidentiary hearing, the Court limited Wollerman’s testimony to his own personal views and expérience because LRSBR had not made any expert disclosures. The extent of Wollerman’s testimony was that extensive work and effort went into, the creation of the brand for Wollerman’s own restaurant, and that Wollerman had visited “Lucy’s” in the past week and it looked exactly the same as he had remembered it from previous visits. Wollerman was not permitted to testify as an expert and offered no expert opinion testimony. Accordingly, because TWTB sought to exclude expert testimony arid no such testimony was proffered, the Court denies TWTB’s motion to strike Woller-man’s testimony. TWTB also objected to Wollerman’s testimony regarding his own restaurant’s brand development as irrelevant. The Court allowed • Wollerman to testify on the subject and asserted that it would assess the relevance at the conclusion. Having considered the testimony, the Court finds that it need not rule on this matter as the Court does not rely upon this testimony in ruling on the instant motion.

TWTB also objected to Virginia Saussy testifying as an expert witness on the grounds that LRSBR had not complied with the requirements of Federal Rule of Civil Procedure 26. The Court ruled during the evidentiary hearing that Saussy would not be permitted to testify as an expert, but stated that the Court would allow Saussy to testify as a lay witness and would decide later how much of her testimony to admit. Upon reyiewing the testimony of Virginia Saussy, the Court finds that the vast majority of her testimony was based upon her personal knowledge and experience working with the Lucy’s Retired Surfer’s Bar & Restaurant brand. The Court sustained an objection to a question regarding what a customér would think looking at a review on Yelp. Although Saussy testified at one point that a Facebook user was confused about whether “Lucy’s” is the same restaurant as “Lucy’s Retired Surfer’s Bar & Restaurant,” the Court gives this testimony no weight. Therefore, with the exception of Saussy’s answer to the question about the Facebook user, the Court will consider Saussy’s testimony. The Court now turns to whether LRSBR has demonstrated a substantial likelihood of success on the merits of its trademark infringement claims.

C. Substantial Likelihood of Success on the Merits

LRSBR essentially argues that:' (1) TWTB’s use of the word “Lucy’s” constitutes trademark infringement of LRSBR’s registered trademarks; (2) TWTB’s use of the word “Lucy’s” constitutes trademark infringement because LRSBR has a valid unregistered trademark in the word “Lucy’s”; and (3) TWTB’s use of the surfer bar trade dress constitutes trade dress infringement. The Court will address each of these arguments in turn.

1. Trademark Infringement Claim Regarding the Registered Trademarks

Trademark infringement claims are governed by the Lanham Act, 15 U.S.C. § 1501 et seq. The Lanham Act defines “trademark,” in relevant part, as:

any word, name, symbol, or device, or any combination thereof ... used by a person .. .to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.

In order to succeed on a trademark infringement claim, a plaintiff must show: (1) that it possesses valid trademarks; and (2) that another party’s use of the marks “creates a likelihood of confusion as to [the] source, affiliation, or sponsorship.”

Registration of a trademark with the United States Patent and Trademark Office constitutes “prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner’s ownership of the mark, and of the owner’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate...,” TWTB does not dispute the validity of LRSBR’s registered trademarks. These federally registered trademarks are: “LUCY’S RETIRED SURFER’S BAR & RESTAURANT,” “SALT WATER WASH ONLY,” “RETIRED SURFERS BAR & RESTAURANT,” a design consisting of the word “Lucy’s” in script above a silhouette of a surfboard and the words “RETIRED SURFERS BAR & RESTAURANT,” as well as a “sailfísh” logo. Therefore, in order for LRSBR to succeed on its trademark infringement claim regarding its registered trademarks, it need only prove the second prong, that TWTB’s use of the marks “creates a likelihood of confusion as to [the] source, affiliation, or sponsorship” of the restaurant’s goods or services. “A former licensee cannot mislead the public into believing that its affiliation continues once the licensing arrangement has ceased.”

The Fifth Circuit has enumerated eight “digits of confusion” to be considered in determining whether the use of a mark creates a likelihood of confusion: “(1) the type of trademark allegedly infringed^] (2) the similarity between the two marks[;] (3) the similarity of the products or serviees[;] (4) the identity of the retail outlets and purchasers [;] (5) the identity of the advertising media utilized[;] (6) the defendant’s intent[;] [ ] (7) any evidence of actual confusion[;]... [and] (8) the degree of care exercised by potential purchasers.” No single factor is dispositive and proof of actual confusion is not necessary. A court need not even find that a majority of the factors are met in order to find that there is a likelihood of confusion.

LRSBR does not specifically argue how these factors support its trademark infringement claim regarding its federally registered trademarks. Instead, LRSBR performs a general analysis of these factors, arguing that all of TWTB’s uses of LRSBR’s marks, both registered and unregistered, create a likelihood of confusion. In support of its argument that there is a likelihood of confusion with LRSBR’s registered trademarks, LRSBR also analogizes to cases from other circuits where courts found a likelihood of confusion following the termination of franchise agreements. LRSBR asserts that in those cases, the fact that the parties were former licensees made confusion more likely. LRSBR also contends that the fact that TWTB is trying to trade on the goodwill of the Lucy’s mark, alone, is enough to make confusion likely. Upon reviewing the evidence presented during the hearing and the.arguments put forth in the briefs, the Court is able to discern whether evidence has’ been presented to support these factors for LRSBR’s trademark infringement claim regarding its registered trademarks. As LRSBR does not make any argument that there is a likelihood of confusion'between TWTB’s surfer bar trade dress and its federally registered trademarks, the Court focuses on TWTB’s use of the word “Lucy’s” as the potential trademark infringement of LRSBR’s registered trademarks. The Court now turns to the evidence presented at the evidentia-ry hearing regarding the factors of confusion.

a. Type of Trademark

The first factor, the type of mark, “refers to the strength of the mark.” In evaluating this factor, courts look to the distinctiveness of a mark and third-party use of that mark. In order to assess the distinctiveness of a word mark, the Fifth Circuit looks to whether- the mark is: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. In evaluating third-party use, “the trier of fact looks at all third party use, not just use in the same industry, to determine whether a mark is a'‘weak’ or á ‘strong’ mark.”

LRSBR simply asserts that “[t]he Lucy’s marks are inherently distinctive and well-known in the New Orleans market.” LRSBR does not attempt to categorize any of its federally registered trademarks in terms of their distinctiveness. Here, the mark that is most similar to TWTB’s use of the word “Lucy’s” is LRSBR’s federally registered trademark “Lucy’s Retired Surfer’s Bar & Restaurant.” The Fifth Circuit has explained that a suggestive mark is one-that “subtly connotes something about the service or product.” In Soweco, Inc. v. Shell Oil Co., the Fifth Circuit gave-the example that the term “Penguin” would be suggestive if used as a trademark for refrigerators. The, Court finds that- this mark, “Lucy’s Retired Surfer’s Bar & Restaurant” relays information to the consumer both that it is a bar and restaurant and that the consumer might expect a “laid-back, easy-going surf bar by the decor[] [and] by the attitude.” Accordingly, the Court finds that LRSBR’s federally registered trademark “Lucy’s Retired Surfer’s Bar & Restaurant” is a suggestive mark which places it in the middle of the spectrum of distinctiveness.

- In evaluating the strength of a mark, however, courts also evaluate third-party use of the mark. Neither party presented any evidence of any third-party use of any of LRSBR’s registered trademarks aside from the alleged uses by TWTB. Furthermore, at the evidentiary hearing, Rampick testified that he had founded -Lucy's Retired Surfer’s Bar & Restaurant iñ New York City in 1984 and the name “Lucy’s Retired Surfer’s Bar & Restaurant” had been in use ever since. Rampick further testified that the name had been used at the business’ 'New York City locations, New Orleans locations, Austin, Texas location, Costa Rica location, as-, well as, at other locations throughout Louisiana over the years. Therefore, the Court finds that “Lucy’s Retired Surfer’s Bar & Restaurant” is a moderately strong mark.

b. Similarity Between the Two Marks

LRSBR’s federally registered trademark “Lucy’s Retired Surfer’s Bar & Restaurant” contains “standard characters without claim to any particular font, style, size, or color.” Another federally' registered trademark owned by LRSBR is an image of the word “ ‘Lucy’s’ in script above a silhouette of a surfboard and the words ‘Retired Surfers Bar & Restaurant’ below the surfboard.” It is Undisputed that TWTB is now using the word “Lucy’s” alone as the name of its business.

Evidence was presented through numerous witnesses at the evidentiary hearing that the word “Lucy’s” was the dominant term in the registered trademark and was commonly used by itself. Sarah Campbell, former events 'manager and former acting general manager of Lucy’s Retired Surfer’s Bar & Restaurant, testified that customers identified : the restaurant as “Lucy’s” or “that surfer bar’ over on Tchoupitoulas.” David Dillen, who has been involved in the business’ New Orleans, Austin, Texas, Costa Rica,-‘and Mandeville, Louisiana locations, testified that the ' customers called the business “Lucy’s.” Rampick testified that customers at all of the businesses he had opened with the name “Lucy’s Retired Surfer’s Bar & Restaurant” had called the business “Lucy’s.” Saussy testified that in March 2014, Lucy’s Retired Surfer’s Bar & Restaurant started using the.hashtag “Jucys-nola” in its posts on social media, but that customers had been using this hashtag on their own before the restaurant made it an official promotion. Even Raper testified that, when he became involved in the business in 1994 or 1995, the name of the business was “Lucy’s.”

The fact that .the .name “Lucy’s”, was used on its own prior to the termination of the License Agreement is further evidenced by photographs, of the building demonstrating that the word “Lucy’s” alone is painted on .two sides of the building in - large, red block letters. Saussy testified that the. building has had the word “Lucy’s” painted on the outside of the building for “many years.” Evidence was also presented that inside the restaurant, the word “Lucy’s” alone appeared on chalkboards and on a mural in the courtyard of the restaurant that had been there for more than fifteen years. Accordingly, considering the evidence before it, the Court finds that there is a strong similarity between TWTB’s use of the word “Lucy’s” and LRSBR’s registered trademark, “Lucy’s Retired Surfer’s Bar & Restaurant,” and therefore this factor weighs in favor of a finding that there is a likelihood of confusion.

c.Similarity of the Products or Services

TWTB argues that there can be no likelihood of confusion because LRSBR is a licensing company while TWTB runs a restaurant and therefore there is no evidence that TWTB and LRSBR are actually in competition. The Court does not find this argument persuasive. In Conan Properties, Inc. v. Conans Pizza, Inc., the Fifth Circuit addressed an argument by Conans Pizza that no reasonable person could have believed that its restaurants were related to Conan Properties, Inc.’s CONAN THE BARBARIAN since the products and services each provided were different. The Fifth Circuit found that “[although CPI never licensed any entity to use its mark in connection with restaurant services, ordinary consumers may well believe that Co-nans was in fact licensed by CPI.” Therefore, the Court finds that the relevant analysis is not necessarily whether the products and services of the company that owns the mark and the company that uses the marks are the same, but whether ordinary consumers who patronize the restaurant are “likely to believe that the res-taurante ] [is] in some way licensed by or affiliated with” LRSBR. In this case, TWTB had a license to operate a restaurant and bar using LRSBR’s trademarks; however, that license was terminated. Now, TWTB continues to operate a restaurant- and bar with the name “Lucy’s.” Therefore, the relevant analysis is whether ordinary consumers believe that the restaurant and bar -is still licensed by or affiliated with LRSBR.

During the duration of the License Agreement, the trademark “Lucy’s Retired Surfer’s Bar & Restaurant” was being used to advertise a restaurant and bar with a surfer theme. Now, TWTB is using the word “Lucy’s” to advertise a restaurant and bar with a surfer theme. Accordingly, the Court finds that • this factor weighs strongly in favor of a finding that there is a likelihood of confusion.

d.Identity of the Retail Outlets and Purchasers

It is undisputed that TWTB’s business operates out of the same physical location as it did when it was licensed to use LRSBR’s trademarks. Therefore, the Court finds that this factor also weighs strongly in favor of a finding that there is a likelihood of confusion.

e.Identity of Advertisiny Media Utilized

“The use of a mark in advertising is highly probative of whether the mark creates a likelihood of confusion in relation to another mark.” LRSBR presented evidence that TWTB continues to use the same social media accounts, including the same Facebook account, Instagram account, Yelp web page, and TripAdvisor web page as it did when it was licensed by LRSBR to use the trademarks. Accordingly, the Court finds that this factor also weighs strongly in favor of a finding that there is a likelihood of confusion.

. f. Defendant’s Intent

LRSBR also presented evidence, that TWTB is intending to trade on the goodwill of the “Lucy’s” mark. Saussy testified regarding an. Instagram post that was posted following the termination of the License Agreement. The post shows the new logo used by TWTB, the word “Lucy’s” in red block letters with a blue outline and a blue wave underneath the word. Underneath the photo are the words “Lucy’s #neworleans has a new look'... whatcha think? #lucygnola.” The Insta-gram post indicates that, the business is simply striving for a “new look,” not that it is no longer a licensed “Lucy’s Retired Surfer’s Bar & Restaurant.” Saússy also testified that during the time that she was retained by Rampick, the business had begun using the hashtag “lucysnola,” a 'practice that is clearly being continued by TWTB. Saussy additionally testified that the social media accounts that she had managed for the business are the same accounts that are currently being used by TWTB and contain reviews from before the License Agreement was terminated, although the name being advertised is no longer “Lucy’s Retired Surfer’s- Bar & Restaurant” but has been changed to “Lucy’s.”

The Court therefore finds that TWTB does intend to trade on the goodwill of the marks in its use of the word “Lucy’s.” Although TWTB presented testimony of the efforts it has taken to design a new logo and replace objects which contained the LRSBR. federally registered trademarks, the Court finds that, through its social media accounts, “Lucy’s” is clearly holding itself out to be, the same business as the. licensed /‘Lucy’s Retired Surfer’s Bar & Restaurant.” Therefore, the Court finds that this factor weighs in favor of a finding that there is a likelihood of confusion.

g. Actual Confusion

LRSBR also presented evidence of actual confusion. LRSBR submitted as evidence posts on social media sites where customers .identified, that they were at “Lucy’s” and tagged the official fan page for “Lucy’s Retired Surfer’s Bar & Restaurant..” LRSBR also submitted as evidence an instance where the official fan page for Lucy’s Retired Surfer’s Bar & Restaurant was tagged in a post describing how the current “Lucy’s” restaurant had provided food for an event but the post thanked “Lucy’s Retired Surfers Bar.” Accordingly, the Court finds that this factor weighs in- favor of a finding that there is a likelihood of confusion.

h. Degree of Care Exercised by Potential Purchasers

Although there was evidence in the record that customers do use websites such as TripAdvisor and Yelp in deciding whether to patronize a particular restaurant, neither party briefed or made arguments during the evidentiary hearing regarding the degree of care exercised by potential customers in deciding whether to patronize the restaurant, Therefore, the Court finds that this factor is neutral.

i. Conclusion

Following the termination of the License Agreement, TWTB has changed the name of the business from !