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This memorandum will analyze whether a trademark infringement claim by "Foglia Vineyards" (hereinafter "FV") against the firm's client Foglia Dairy Farms (hereinafter "FDF") under Lanham Act Ð'§ 43(a), [ALSO GIVE THE U.S.C. CITE HERE] would be successful. [I WOULD QUOTE THE STATUTE AT THIS POINT]. The Ninth Circuit has developed a test involving eight factors courts should consider when dealing with a likelihood of confusion case. [CITE SLEEKCRAFT, WHERE THE TEST COMES FROM]. Because the firm's attorneys have already analyzed four of the factors [LIST THEM] individually, this memo will focus on the remaining four factors {LIST THEM HERE], stating a final conclusion considering all of them.

The Lanham Act Ð'§ 43(a) provides as follow: "Any person who uses in commerce any word, term, name, symbol, or device which is likely to cause confusion as to the origin, sponsorship, or approval of his or her goods, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act."

I. First factor analyzed: The first issue is whether FDF's cheeses and FV's wines are "closely" related goods.

Two goods are "closely related" if they are complementary, they have similar uses and functions, or if they are sold to the same class of purchasers. AMF, Inc. v. Sleekcraft, 599 F.2d 341, 350 (9th Cir. 1979).

In Surfvivor Media, Inc. v. Survivor, 401 F.3d 625, [JUMP CITE] (9th Cir. 2005), the plaintiff was selling a wide range of beach products (from sunscreen, to t-shirts, to surfboards) and alleged that defendant's placement of its mark on the same kind of merchandise infringed plaintiff's own trademark. The appeals court held that even though both parties portrayed an outdoor theme, there was no material evidence that customers associated the products being advertised with the different marks came from a single source.

In Dreamwerks Prod. Group, Inc. v. SKG Studio, 137 F.3d 1127, [JUMP CITE] (9th Cir. 1998), the court held that plaintiff's sci-fi merchandise and defendant's movies were closely related because they were "as complementary as baseball and hot dogs." The products were complementary because the products sold at DREAMWERKS' conventions (movie and TV collectibles & memorabilia), and lectures, previews and appearances by actors, which attracted customers to such conventions, all depended on the existence of the tv shows and movies made by entertainment giants like DREAMWORKS movie studio. Because of such dependency, it was quite likely that customers would suspect DREAMWORKS of sponsoring conventions at which movie merchandise is sold.

In the case at bar, the products of FV and FDF are not closely related. First of all, they are not complementary. The Webster Online Dictionary defines the word "complementary" as "serving to fill out or complete" and "mutually supplying each other's lack". Thus, we can infer that for two things to be complementary they must ordinarily be used together for a specific purpose. In this case, both cheese and wine can be consumed with a wide variety of food and drinks. It might be contended that the products are indeed complementary because they are sometimes consumed together, but in such cases, cheese of a more sophisticated type is consumed, not ordinary cheese.

Likewise, it might be argued that wine and cheese are often used together for the same purpose. However, wine is not always purchased to drink later; it has several other uses such as cooking. Cheese on the other hand is just a type of food, destined to be consumed by whomever buys it. As for the kind of consumers that both the FV wines and the FDF cheeses target, the first are sold mainly to wine connoisseurs (given the high price of the bottle), while the latter is sold to many types of consumers given the fact of its reasonably low price and it being a product consumed almost daily in a typical American diet. Since the products are not "closely related," this factor will favor defendant (?).

II. Second Factor analyzed: The next issue is whether the mark used by FDF in its cheeses and that used by FV in its wines, are so similar as to increase the likelihood of confusion among customers. "Similarity of the marks is tested on three levels: sight, sound, and meaning." Sleekcraft, 599 F.2d at 351. For a mark to be similar to another, they both must sound similar enough to create confusion, they both must be visually alike, and they both must have a similar meaning. [CITE].

The FDF mark is represented in a logo that has a smiling cow and the word FOGLIA. In contrast, FV uses a totally different mark, which has a logo picturing two oak leaves and the word FOGLIA. When comparing the two marks and their logo, the only similar thing among those is the word FOGLIA.

In the SLEEKCRAFT case, [CITE], AMF INC. used the trademark "SLICKCRAFT" on its line of speed boats. Its line of boats also had the mark AMF printed on them. On the other hand, defendant had the name SLEEKCRAFT printed on every boat. Both marks had striking resemblance. It was noted that even though the SLEEKCRAFT mark had an accompanying logo next to it that created some differentiation, such logo was sometimes absent in the boats. The test of similarity of marks thus relied on the words SLICKCRAFT and SLEEKCRAFT. The court concluded that the marks were alike in sound,