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If a member of the public is not able to identify the plaintiff’s products with the plaintiff, then even if the defendant creates identical products they would not cause confusion for the public.

Olem Shoe Corp. (“Olem”) and Washington Shoe Co. (“Washington”) both manufactured rubber rain boots that had printed designs on them. Olem’s boots design looked identical to several designs that Washington was using on its boots. Washington sent a letter to Olem asking Olem to stop using the designs that looked the same as Washington’s. When Olem did not cease manufacture of the design on the boots, Washington sued Olem for trademark dress infringement. Washington claimed that the public would be confused by Olem’s boots, and mistake them for Washington’s boots. Washington did not have its design for the boots registered. The court found that it was necessary for Washington to establish secondary meaning for the designs on the boots in order to suggest a likelihood of confusion. Olem argued that because Washington did not conduct a customer survey to find out if customers identified the boots with Washington, that Washington had failed to demonstrate secondary meaning. The court agreed with Olem, and found that Washington had failed to bring any meaningful or competent proof of secondary meaning associated with its boots design. Because Washington failed to demonstrate secondary meaning, no jury could find secondary meaning and as a result the court GRANTED summary judgement to Olem.