on the matter. For this reason, this factor does not weigh in favor of either party.
4. Actual Confusion
Plaintiff offers evidence to indicate that there has been actual confusion in the past among people telephoning or writing to Plaintiff or Defendant. Among other things, Plaintiff offers a list of Defendant's employees that Plaintiff's receptionist kept to help her redirect Defendant's telephone calls that were mistakenly placed to Plaintiff's offices. Plaintiff also proffers a letter and several self-addressed stamped envelopes that Defendant's employee sent Plaintiff asking Plaintiff to forward all misdirected mail to Defendant.
Plaintiff offers this evidence with the argument that likelihood of confusion can be presumed once actual confusion is shown, and summary judgment can therefore be granted. The cases Plaintiff cites to support this argument do not actually stand for this position, however. Most of the cases simply analyze the facts of their cases and so are unhelpful to support Plaintiff's legal argument. American Home Prods. Corp. v. Barr Labs, Inc., 834 F.2d 368, 370 (3d Cir. 1987); Lois Sportswear, 799 F.2d at 876; TransAmerica Corp. v. Trans America Abstract Serv., 698 F. Supp. 1067, 1071 (E.D.N.Y. 1988). The cases that address the legal ramifications of showing actual confusion consider it to be only a significant, not determinative, factor in finding a likelihood of confusion. Versa Prods. Co. v. Bifold Co., 50 F.3d 189, 205 (3d Cir. 1995), petition for cert. filed, May 12, 1995; Lone Star Steakhouse & Saloon, 43 F.3d at 937; Smith Fiberglass Prods., 7 F.3d at 1331.
Defendant does not present any evidence to contradict Plaintiff's evidence, but instead, argues that Plaintiff's evidence does not demonstrate actual confusion. Defendant points out that Plaintiff has not shown evidence that any mortgage buyers have bought a mortgage from one company when they meant to purchase it from another. Furthermore, Defendant argues that isolated examples of confusion in addresses and telephone numbers do not demonstrate confusion in the relevant marketplace. Id.
We find that Plaintiff's evidence is not sufficient to demonstrate actual confusion at the summary judgment stage, although we disagree with Defendant that only pre-sale confusion is relevant to this inquiry. Lois Sportswear, 799 F.2d at 872 (post-sale confusion acceptable proof); Oreck, 803 F.2d at 173 (indicia of actual confusion include misdirected telephone calls and mail). We find a material issue of fact as to what the relevant marketplace is and whether there has been actual confusion within it. Accordingly, this factor weighs in favor of neither party.
5. Alleged Infringer's Intent
Defendant offers evidence that it had no intent to infringe Plaintiff's mark because it chose its name before Plaintiff's mark was registered. It proffers its Articles of Incorporation filed with Pennsylvania's Department of State Corporation Bureau. This document states its name as First Keystone Mortgage, Inc. and was filed on March 4, 1985. Plaintiff's evidence is that it registered its mark on March 12, 1985, but had been using it continuously since 1982. We find a genuine issue of material fact as to whether Defendant had actual notice of Plaintiff's mark before 1985 from Plaintiff's pre-registration use, and therefore, this factor does not weigh in any party's favor.
To summarize, we found that the only factor of the infringement analysis that weighed in Plaintiff's favor was similarity of marks. We found that the only factor that weighed in Defendant's favor was the strength factor, and that there were genuine issues of material fact as to the other factors. Because the scales are evenly balanced and because of the numerous issues of material fact that exist, we find that the issue of infringement is not amenable to summary judgment. For this reason, both parties' motions for summary judgment on this ground are denied.
An appropriate Order follows.
AND NOW, this 16th day of August, 1995, upon consideration of First Keystone Mortgage, Inc.'s Motion for Summary Judgment (doc. no. 13) and First Keystone Federal Savings Bank's Motion for Partial Summary Judgment (doc. no. 17) and responses thereto, the Motions are hereby DENIED.
BY THE COURT:
J. CURTIS JOYNER, J.
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