Mid South Building Supply of Maryland, Inc. v. Guardian Door & Window, Inc.

PAUL E. ALPERT, Judge (Ret., specially assigned). Appellant, Mid South Building Supply of Maryland, Inc. (“Mid South”), is a Maryland corporation engaged in the business of selling building supplies and materials. In addition to its principal place of business in Beltsville, Mid South has a facility in Baltimore that it acquired in 1999 when it purchased the assets of United Wholesale. Mid South sells security storm doors.

It purchases the storm doors from a Philadelphia company known as Guida, Inc. Guida makes and sells security storm doors under the name “Guardian Security Storm Doors.” Appellee, Guardian Door and Window, Inc. (“Guardian”), is also a Maryland corporation with its principal place of business in Beltsville. Guardian and its predecessors have been in the business of manufacturing, selling, and installing doors, storm doors, and security door systems in Maryland, Virginia, and the District of Columbia since 1988. Guardian has sold security storm doors under the name “Guardian Security Storm Door” since 1988. On December 15, 2000, Mid South filed in the Circuit Court for Prince George’s County a complaint against Guardian for breach of contract.

Guardian filed a counterclaim, and eventually an amended counterclaim, against Mid South alleging trademark infringement. Mid South’s complaint was tried first. In a bench trial, the court found that Guardian had failed to pay for goods it had purchased on credit from Mid South, and awarded Mid South $54,358.05 in principal, plus prejudgment interest totaling $31,346.35, and attorney’s fees totaling $22,039.78. The circuit court then certified that judgment as final under Md. Rule 2-602(b).

In an unreported opinion, we affirmed the circuit court’s judgment. Guardian Door & Window, Inc. v. Mid South Building Supply of Maryland, Inc., No. 1768, Sept. Term 2002 (filed September 17, 2003) (Guardian I). A bench trial was held on the amended counterclaim on August 21 and October 16, 2002. At the close of the evidence, the court heard arguments from counsel and then asked the ⁴⁵² parties to submit memoranda addressing the legal issues that had arisen during the course of the trial.

By order dated January 14, 2003, the circuit court “adopted as its own the Proposed Findings of Fact and Conclusions of Law of Guardian Door & Window, Inc. (except on the issue of damages as it may relate to counter-claimant’s lost profits which the Court considers excessive under the unique circumstances of this case).” The court found that Mid South infringed upon Guardian’s trademark by selling security storm doors not made by Guardian under the name “Guardian Security Storm Doors.” The court ordered that judgment be entered in favor of Guardian in the amount of $45,990.33, an amount equal to “three times the counter-defendant’s profits from the sale of the subject doors.” The court also enjoined Mid South from selling security storm doors not made by Guardian Door which bear the name or mark “Guardian Security Storm Door.” Mid South filed a motion to alter or amend the judgment, and the court denied the motion. This timely appeal followed. Issues Presented Mid South presents two issues for our consideration: I. Whether the trial court clearly erred in finding that Mid South infringed Guardian’s trademark; and, II. Whether the trial court clearly erred in determining Guardian’s damages.

Factual Background Since at least 1996, Mid South has purchased security storm doors from Guida, Inc. of Philadelphia, Pennsylvania. Guida makes and sells security storm doors under the name of “Guardian Security Storm Doors.” Between June 1, 1999, and August 29, 2001, Mid South purchased one hundred fifty-six storm doors from Guida, Inc., all of which were sold by Mid South to its customers. On July 2, 1998, the State of Maryland issued to Guardian a certificate registering the trademark “GUARDIAN SECURI ⁴⁵³ TY STORM DOOR” for a duration of ten years. On May 23, 2000, the United States Patent and Trademark Office issued to Guardian a certificate of registration for the mark “A GENUINE GUARDIAN SECURITY STORM DOOR,” also for a duration of ten years.

In early April 2000, Patrick Toler, an employee of Guardian, observed on display at Mid South’s Beltsville, Maryland location, brochures for Guardian storm doors. He took some of the brochures and gave them to his brother, Christopher Toler, the president of Guardian. Subsequently, Christopher Toler met with Mid South’s Vice President, Daniel J. Flynn, and advised him that Mid South was infringing on Guardian’s trademark. At trial, Christopher Toler testified that Flynn stated that he was not aware of the infringement and that Mid South had purchased United Wholesale and he was not sure what they were selling.

Flynn agreed to stop selling the doors. Flynn testified at trial that the brochures and some Guardian Doors were on display for approximately one week or so at Mid South’s Beltsville location in early 2000. He claimed that Mid South discontinued these displays when he was informed by Toler of a possible trademark infringement. He denied violating or infringing Guardian’s trademark after he received notice from Toler.

According to Flynn, all of the doors were being sold only under the name “American Insulator.” Flynn admitted, however, that he never looked inside the boxes containing the doors to check the literature provided, and he had not taken any steps to change references to Guardian Security Storm Doors that were on the literature. On April 4, 2000, Flynn wrote to Christopher Toler, informing him that Mid South then had 32 Guardian Security Storm Doors in stock. Flynn wrote, in part: This letter is to confirm that Mid South Building Supply of Maryland will not display or order any security doors under the Guardian name. We currently have 32 doors in stock at our Baltimore location that we would sell with the understanding we would not reorder. ⁴⁵⁴ In return, your company will continue the volume of business done with Mid South Building Supply of Maryland before payments to us stopped and we ceased shipping products to your company.

The average purchase by your company for the three months November to January was $12,265. On November 14, 2001, Wayne Males, a private investigator, was asked by counsel for Guardian, to go to Mid South’s Baltimore location to purchase a Guardian Security Storm Door. He testified that he was informed that there was only one door left. He paid cash for the door and was given a receipt.

The box he was given had the words “Guardian Security Storm Door” printed on it. He put the door in his truck and delivered it to the office of Guardian’s’ attorney. Patrick Toler testified that he opened the box purchased by Males. In addition to the door, Patrick Toler found a warranty and other documents identifying the door as a Guardian Storm Door.

We shall include additional facts as necessary in our discussion of the issues presented. Discussion Standard of Review Since this case is an appeal from a bench trial, we shall apply the same standard of review that we applied in the parties’ previous appeal in Guardian I: In an appeal from a bench trial, “ ‘we review the case on the law and the evidence.’ ” Green v. Bellerive Condos. Ltd. P’ship, 135 Md.App. 563, 570 [, 763 A.2d 252 ] (2000) (quoting Md. Rule 8—131(c)), cert. denied, 363 Md. 206 [, 768 A.2d 55 ], cert. denied, 534 U.S. 824 [, 122 S.Ct. 60 , 151 L.Ed.2d 28 ] (2001). We “will not set aside the judgment of the trial court on the evidence unless clearly erroneous.” Md. Rule 8-131(c). “ ‘[I]f “competent material evidence” supports the trial court’s findings, we must uphold them and cannot set them aside as “clearly erroneous.” ’ ” Shofer v. Stuart Hack Co., 124 Md.App. 516, 527 [, 723 A.2d 481 ] (citations omitted), ⁴⁵⁵ cert. denied, 354 Md. 331 [, 731 A.2d 440 ] (1999).

We will also “give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). “With respect to the lower court’s application of the law to the facts, we apply the abuse of discretion standard.” Shofer, 124 Md.App. at 527-28 [, 723 A.2d 481 ]. We do not evaluate conflicting evidence but assume the truth of all evidence, and inferences fairly deducible from it, tending to support the findings of the trial court, and, on that basis, simply inquire whether there is any evidence legally sufficient to support those findings. Sea Watch Stores Limited Liability Co. et al. v. The Council of Unit Owners of Sea Watch Condominium, 115 Md.App. 5, 31-32 , 691 A.2d 750 (1997). Trademark Infringement Trademarks are “a universal phenomenon in that the legal system of almost every nation in the world recognizes some form of identification of the source and quality of goods.” J. Thomas McCarthy, 1 McCarthy on Trademarks and Unfair Competition, § 2:6 (4th ed. 2003).

According to Professor McCarthy: From an economic point of view, a trademark is merely a symbol that allows a purchaser to identify goods or services that have been satisfactory in the past and reject goods or services that have failed to give satisfaction. Trademarks fix responsibility. Without marks, a seller’s mistakes or low quality products would be untraceable to their source. Therefore, trademarks create an incentive to keep up a good reputation for a predictable quality of goods.

An important purpose underlying trademark law is the protection of the trademark owner’s investment in the quality of the mark and the quality of the goods or services the mark identifies. 1 McCarthy at §§ 2:4 and 2:6. Under federal law, trademarks are governed by 15 U.S.C. § 1051 et seq. (commonly referred to as the Lanham Act). ⁴⁵⁶ Section 1127 defines a trademark as “any word, name, symbol, or device or combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.” 1 15 U.S.C. § 1127 . Maryland statutory law uses the term “mark” to refer to both trademarks and service marks.

Section 1-401 (c) of the Business Regulations article of the Maryland Code provides: (c) Mark.—“Mark” means a name, symbol, word, or combination of 2 or more of these that a person: (1) places on goods that the person sells or distributes, a container of the goods, a display associated with the goods, or a label or tag affixed to the goods to identify those goods that the person makes or sells and to distinguish them from goods that another person makes or sells; or (2) displays or otherwise uses to advertise or sell services that the person performs to identify those services that the person performs and to distinguish them from services that another person performs. The essential element of a trademark is the exclusive right of its owner to use a word or device to distinguish his or her product. Infringement of a trademark consists of unauthorized use or colorable imitation of a mark already appropriated by another on goods of a similar class. Block v. Jung Arch Brace Co., 300 F. 308 (C.C.A.60hio), cert. denied, 266 U.S. 620 , 45 S.Ct. 99 , 69 L.Ed. 472 (1924); Stahly, Inc. v. M.H. Jacobs Co., 87 F.Supp. 48 (N.D.Ill.1949), modified on other grounds, 183 F.2d 914 (1950), cert. denied, 340 U.S. 896 , 71 S.Ct. 239 , 95 L.Ed. 650 (1950).

In trademark infringement litigation, the trademark is juxtaposed against another’s usage to determine whether the usage is likely to confuse customers. 1 McCarthy § 2:7. The likelihood of confusion is the “key ⁴⁵⁷ stone of infringement.” Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 462 (4th Cir.), cert. denied, 519 U.S. 976 , 117 S.Ct. 412 , 136 L.Ed.2d 325 (1996). Trademark infringement under Maryland statutory law is governed by § 1-414 of the Business Regulations article, 2 which provides: (a) In general.—Subject to § 1-402 of this subtitle, a person may not: (1) use, without the consent of the registrant, a reproduction or colorable imitation of a mark registered under this subtitle in connection with the sale, offering for sale, or advertising of goods or services if the use is likely to confuse or deceive about the origin of the goods or services; or (2) reproduce or colorably imitate a mark registered under this subtitle and apply the reproduction or colorable imitation to an advertisement, label, package, print, receptacle, sign, or wrapper that is intended to be used: (1) with goods or services; or (ii) in conjunction with the sale or other distribution of goods or services in the State. (b) Civil liability.—(1) A person who violates this section is liable in a civil action to a registrant for any remedy provided in this section.

(2) A registrant may recover profits or damages from a person who violates subsection (a)(2) of this section only if the person intended that the mark be used to confuse or deceive. ⁴⁵⁸ (c) Injunction authorized. A registrant may sue to enjoin the display, manufacture, sale, or use of a reproduction or colorable imitation of a mark of the registrant. (d) Judicial remedies.—A court of competent jurisdiction may: (1) grant an injunction to restrain the display, manufacture, sale, or use of a reproduction or colorable imitation of a registered mark; (2) require the defendant to pay to the registrant for the wrongful display, manufacture, sale, or use of a reproduction or colorable imitation of a mark: (i) any profit that the defendant derived; (ii) any damages that the registrant suffered; or (iii) both; and (3) require the defendant to deliver to an officer of the court or to the registrant, for destruction, any reproduction or colorable imitation of the mark that is in the possession or under the control of the defendant. 15 U.S.C. § 1114 provides, in part: (1) Any person who shall, without the consent of the registrant— (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or (b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, ⁴⁵⁹ shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) hereof, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake, or to deceive.

(2) Notwithstanding any other provision of this chapter, the remedies given to the owner of a right infringed under this chapter or to a person bringing an action under section 1125(a) or (d) of this title [3] shall be limited as follows: (A) Where an infringer or violator is engaged solely in the business of printing the mark or violating matter for others and establishes that he or she was an innocent infringer or innocent violator, the owner of the right infringed or the person bringing the action under section 1125(a) of this title shall be entitled as against such infringer or violator only to an injunction against future printing. (E) As used in this paragraph— (i) the term “violator” means a person who violates section 1125(a) of this title; and (ii) the term “violating matter” means matter that is the subject of a violation under section 1125(a) of this title. ⁴⁶⁰ It is clear that trademark infringement cases under either the Maryland statute or the Lanham Act are based on the same legal theory and require the same proof. See Sterling Acceptance Corp. v. Tommark, Inc., 227 F.Supp.2d 454, 460 (D.Md.2002)(“The test for trademark infringement and unfair competition under state law is the same as the test under the Lanham Act.”); St. Joseph Hospital v. Quinn, 241 Md. 371, 377 , 216 A.2d 732 (1966) (when a provision of Maryland law is patterned after a provision of the law of other jurisdictions, the construction given that provision in those other jurisdictions is persuasive as to the meaning of the Maryland act). Under both the Lanham Act and the Maryland statute, the moving party must show (1) that it possesses a mark; (2) that the defendant used the mark without the registrant’s consent; (3) that the defendant’s use of the mark occurred in commerce; (4) that the defendant used the mark in connection with the sale, offering for sale, distribution, or advertising of goods or services; and (5) that the defendant used the mark in a manner likely to cause confusion or to cause mistake or to deceive. 15 U.S.C. § 1114 (1); People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359, 364 (4th Cir.2001).

The test requires proof of likelihood of confusion; evidence of actual confusion is unnecessary in a trademark infringement suit. Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455 (4th Cir.1996); Lone Star Steakhouse and Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 933 (4th Cir.1995); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867 (2d Cir.1986). In proving likelihood of confusion, the moving party must show that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question. Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 463 (4th Cir.1996); Yarmuth-Dion, Inc. v. D’ion Furs, Inc., 835 F.2d 990, 993 (2d Cir.1987) (quoting Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978) (per curiam), cert. denied, 439 U.S. 1116 , 99 S.Ct. 1022 , 59 L.Ed.2d 75 (1979)).

Expansive interpretation should be given to the ⁴⁶¹ likelihood of confusion, so as to extend protection against the use of a mark on any product or service which would reasonably be thought by the buying public to come from the same source, or thought to be affiliated with, connected with, or sponsored by, the trademark owner. Anheuser-Busch, Inc. v. Balducci Publications, 28 F.3d 769 (8th Cir.1994), cert. denied, 513 U.S. 1112 , 115 S.Ct. 903 , 130 L.Ed.2d 787 (1995). In Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir.1984), and later in Lone Star Steakhouse, 43 F.3d at 933 , the Fourth Circuit Court of Appeals identified a number of factors to consider in ascertaining the likelihood of confusion between two trademarks: (1) the strength or distinctiveness of the senior mark; (2) the similarity of the two marks; (3) the similarity of the goods or services that the marks identify; (4) the similarity of the facilities employed by the parties to transact their business; 4 (5) the similarity of the advertising used by the parties; (6) the defendant’s intent in adopting the mark; and (7) actual confusion. These factors are not meant to be rigidly applied in infringement actions; they are meant as a guide—a catalog of various considerations that may be relevant in determining the ultimate question of likelihood of confusion.

Anheuser-Busch, Inc. v. L&L Wings, Inc., 962 F.2d 316, 320 (4th Cir.1992), cert. denied, 506 U.S. 872 , 113 S.Ct. 206 , 121 L.Ed.2d 147 (1992). In Sara Lee, the Fourth Circuit recognized that there are other factors that may be considered relevant in analyzing the likelihood of confusion, such as the quality of the defendant’s product and the sophistication of the consuming public. Sara Lee, 81 F.3d at 463-64 . With these standards in mind, we shall examine each of Mid South’s contentions. ⁴⁶² Likelihood of Confusion A. Distinctiveness of Guardian’s Mark Mid South contends that the trial court erred in finding that it infringed on Guardian’s trademark because Guardian failed to show a strong likelihood of confusion.

Specifically, Mid South first complains that the trial court erred in finding that Guardian’s mark is distinctive and is, therefore, entitled to substantial protection. Mid South argues that “although the word ‘Guardian’ may suggest security and/or protection of some type, the suggestion is not limited to the realm of storm doors and as such the suggestion is weak.” We find no error in the court’s finding. The distinctiveness of marks was discussed at length in Sara Lee, where the Fourth Circuit wrote: The protection accorded trademarks is directly related to the mark’s distinctiveness. “Fanciful,” “arbitrary,” and “suggestive” marks are inherently distinctive, and thus receive the greatest protection against infringement. 1 McCarthy § 11.01[1]. Fanciful marks are, in essence, made-up words expressly coined for serving as a trademark.

Some examples of fanciful marks are Clorox (R), Kodak (R), Polaroid (R), and Exxon (R). Id. at § 11.08[4]. Arbitrary marks are comprised of words in common usage, but, because they do not suggest or describe any quality, ingredient, or characteristic of the goods they serve, are said to have been arbitrarily assigned. Examples include Tea Rose (R) flour, Camel (R) cigarettes, and Apple (R) computers.

Id. at § 11.04[3]. Though tea rose, camel, and apple are—unlike Clorox (R) and Kodak (R)—words denoting “real” things, they are similar to fanciful marks in that they neither suggest any mental image of the associated product nor describe it in any way. Suggestive marks connote, without describing, some quality, ingredient, or characteristic of the product. Coppertone (R), Orange Crush (R), and Playboy (R) are good examples of suggestive marks because they conjure images of the associated products.

Id. at § 11.23. These marks are ⁴⁶³ nevertheless not descriptive; although they are meant to project a favorable or idealistic image with which a prospective user might identify, a person without actual knowledge would have difficulty in ascertaining the nature of the products that the marks represent. In contrast to fanciful, arbitrary, or suggestive marks, there are marks that are not inherently distinctive. For instance, certain marks merely describe a function, use, characteristic, size, or intended purpose of the product.

Examples of such “descriptive” marks include After Tan post tanning lotion, 5 Minute glue, King Size men’s clothing, and the Yellow Pages telephone directory. Id. at § 11.08. Marks that are merely descriptive are accorded protection only if they have acquired a “secondary meaning,” that is, if “in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself.” Dayton Progress [Corp. v. Lane Punch Corp., 917 F.2d 836 ] at 839 [ (4th Cir.1990) ] (quoting Inwood Laboratories v. Ives Laboratories, 456 U.S. 844 , 851 n. 11, 102 S.Ct. 2182 , 72 L.Ed.2d 606 (1982)). Coca-Cola (R) is probably the paradigm of a descriptive mark that has acquired a secondary meaning.

Sara Lee, 81 F.3d at 464 . The court in Sara Lee went on to discuss generic terms, which identify the general nature of an item and denominate a type, kind, genus or subcategory of goods: “Generic” terms are the common name of a product or service itself, and can never be trademarks. Perini [Corp. v. Perini Constr., Inc., 915 F.2d 121, 127 (4th Cir.1990)]. Examples of brand names held to be generic terms are Convenient Store retail stores, Dry Ice solid carbon dioxide, Light Beer ale-type beverages, and, in a case where a once-fanciful mark had, over time, been assimilated into the language, Thermos vacuum-insulated bottles. 2 McCarthy § 12.03 (citation omitted).

Sara Lee, 81 F.3d at 464 . See also Dayton Progress Corp. v. Lane Punch Corp., 917 F.2d 836, 839 (4th Cir.1990) (quoting ⁴⁶⁴ G. Heileman Brewing Co. v. Anheuser-Busch, Inc., 873 F.2d 985, 997 (7th Cir.1989)). Mid South contends that the phrases “a genuine” and “security storm door” are nothing more than general descriptions of Guardian’s product. While Mid South acknowledges that the word “Guardian” “may be suggestive,” in that it “may suggest security and/or protection of some type,” it contends that the mark is weak because the suggestion is not limited to the realm of storm doors.

The strength of a mark “ ‘ultimately depends on the degree to which the designation is associated by prospective purchasers with a particular source.’ ” Petro Stopping Centers, L.P. v. James River Petroleum, Inc., 130 F.3d 88, 93 (4th Cir.1997), cert. denied, 523 U.S. 1095 , 118 S.Ct. 1561 , 140 L.Ed.2d 793 (1998) (citing Estee Lauder, Inc. v. The Gap, Inc., 108 F.3d 1503, 1510 (2d Cir.1997) (quoting Restatement (Third) of Unfair Competition, § 21 (1995))). In the case sub judice, the court considered the testimony of Stephen Genseal, sales representative for Guardian, who stated that, on average, once or twice a week, people tell him that they can get security storm doors cheaper from another retailer or company. He specifically testified that he has lost sales as a result of the fact that others are selling Guardian Security Storm Doors. Genseal stated that in the past six months he had two customers seek to cancel their contracts because they found another company selling the same product and he had to reduce the prices in order to keep the contracts.

Genseal’s testimony was coupled with the testimony of Christopher Toler who stated that Guardian had received numerous telephone calls to repair doors that it did not make or sell. Based on this evidence, we find no error in the trial court’s conclusion that Guardian’s mark is distinctive and entitled to substantial protection. Mid South further contends that Guardian’s mark lacks commercial strength, that is, marketplace recognition, because ⁴⁶⁵ Guardian failed to prosecute others for trademark infringement. Mid South claims that the failure to prosecute demonstrates that “the mark may be so crowded in by similar marks used by competitors that the mark is alive, but weakened.” We find no error in the trial court’s decision to reject this argument.

Although Christopher Toler acknowledged that there are other infringers “out there,” there was no evidence presented to indicate how many other infringers might exist or how many similar marks are used by competitors. Moreover, although Toler first became aware that Guida was selling security storm doors under the name Guardian in 1996, he was not aware that Guida was doing substantial business in Maryland until 2000, when Patrick Toler brought him brochures he had obtained from Mid South. Finally, the evidence established that since the time Guardian’s mark was registered in Maryland and in the United States Patent and Trademark Office, Guardian has sent letters to other alleged infringers regarding the sale of Guardian Security Storm Doors. All of this evidence supports the trial court’s decision rejecting Mid South’s contention that Guardian’s mark has been weakened.

B. Similarity of the Marks and Similarity of the Goods In considering the issues of the similarity of the mark and the similarity of the product, the trial court determined that the evidence weighed strongly in favor of Guardian because Mid South was selling the identical product and using the identical mark. The judge specifically noted that, although there was testimony regarding differences in the quality of the products sold by the parties, the “product appearance is virtually identical.” Mid South does not dispute the similarity of the storm doors that the marks identify. It does, however, take issue with the trial court’s finding that the similarity of the marks weighed strongly in favor of Guardian. It contends that “the Court had very little evidence before it from which a comparison of the marks could have been made.” We disagree.

The trial court had before it one of the brochures obtained from Mid South by Patrick Toler, the box and door purchased ⁴⁶⁶ from Mid South by Arthur Males, and the warranty and installation instructions from that box. The Fourth Circuit has held that, in evaluating the similarity of two marks, “the marks need only be sufficiently similar in appearance, with greater weight given to the dominant or salient portions of the mark.” Lone Star Steakhouse & Saloon, Inc., 43 F.3d at 936 (1995) (citing Pizzeria Uno, 747 F.2d at 1534-35 ). Sub judice, the dominant portion of the marks at issue—“Guardian”—is the same, thus supporting the trial court’s finding that the similarity of the marks favored Guardian. C. Similarity of Facilities Used by the Parties Mid South contends that, “[t]o the extent that the trial court found as a fact that the similarity of the facilities that the two parties use in their businesses favored Guardian Door over Mid South, such finding is unsupported by substantial record evidence and is therefore clearly erroneous.” Mid South further argues that there could not be any overlap between the parties’ target markets because it “sells primarily to contractors and Guardian Door sells primarily directly to homeowners.” Contrary to Mid South’s contention, the trial court did not find that this factor favored Guardian.

In considering the similarity of the facilities used by the parties to transact their respective businesses, the trial court determined that this issue “does not play any role in this case” because “[a]ny difference which exists has little if any effect on consumer perceptions.” We find no error in this finding. D. Similarity of Advertisiny Methods In addressing this factor, the trial court stated: The issue of the similarity of the advertising used by the parties plays no role in this case because no evidence regarding it was introduced other than the two brochures taken from Mid South’s place of business. The “Guardian” brochure which [Patrick] Toler found at Mid South’s place of business clearly favors Guardian. The “American Insula ⁴⁶⁷ tor” brochure does not help Mid South because there is no evidence that it is shown to consumers, and in any case as Mr. Flynn testified, the only permanent piece of paper the consumer receives when he purchases the product either directly or indirectly from Mid South is a warranty with the name “Guardian Security Storm Door” on it.

Mid South contends that this finding was unsupported by substantial record evidence. We disagree. Mid South’s Vice President, Daniel Flynn, acknowledged that the “Guardian” brochures were on display for a week or so in early 2000 and that Guardian doors were on display during the same week at the company’s Beltsville location. Although he claimed that the displays were discontinued after he was informed of the possible trademark infringement, and that the doors were then sold under the American Insulator name, he also admitted that he never looked inside the boxes to see what was stated on the written literature and he has not done anything to change the literature that is contained in the boxes.

This evidence, coupled with the written warranty containing the name “Guardian Security Storm Doors,” amply supports the trial court’s finding. E. Intent to Confuse the Buying Public On the issue of the intent to confuse the buying public, the trial court determined: The issue of the defendant’s intent in using the same mark again is important here. Mr. Flynn testified that Mid South is using the name “American Insulator” on its security storm doors, but the evidence is to the contrary. Mr. Flynn, as Mid South’s representative, obviously understands the possibility of confusion from the use of the same name for the same product.

The problem is that by his own admission he has done nothing about it. Clearly, Mid South never intended to terminate its infringement once it was notified of the problem. Mid South complains that this finding is not supported by the evidence because after learning of the alleged trademark ⁴⁶⁸ violation, it removed the “Guardian” promotional materials from its showrooms and marketed the doors under the name, “American Insulator.” Mid South denies that it intentionally continued to use the Guardian name because, according to Flynn, it was unaware that the storm door box and warranty information showed the name “Guardian.” Mid South suggests that the fact that a purchaser may see some reference to “Guardian” after the purchase is immaterial because customers would not see any such reference until after the purchase. We disagree and explain. “Evidence of bad faith is a strong indication that a likelihood of confusion exists.” Sterling Acceptance Corp. v. Tommark, Inc., 227 F.Supp.2d 454, 463 (D.Md.2002).

In Pizzeria Uno, 747 F.2d at 1535 , the Fourth Circuit wrote: The intent of the defendant is