

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 96-1206

         THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND
               AEROSPACE WORKERS, AFL-CIO, ET AL.,

                     Plaintiffs, Appellants,

                                v.

              WINSHIP GREEN NURSING CENTER, ET AL.,

                      Defendants, Appellees.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

             [Hon. Gene Carter, U.S. District Judge]                                                             

                                             

                              Before

                      Selya, Circuit Judge,                                                    

              Torres* and Saris,** District Judges.                                                            

                                             

     Mark  Schneider,  with whom  John  M.  West and  Bredhoff  &amp;                                                                           
Kaiser, P.L.L.C. were on brief, for appellants.                          
     Richard L. O'Meara, with whom Charles P. Piacentini, Jr. and                                                                       
Murray, Plumb &amp; Murray were on brief, for appellees.                                

                                             

                        December 30, 1996

                                             

              
*Of the District of Rhode Island, sitting by designation.
**Of the District of Massachusetts, sitting by designation.

          SELYA,  Circuit Judge.    In this  eccentric case,  the                    SELYA,  Circuit Judge.                                         

International Association  of  Machinists and  Aerospace  Workers

(IAM or Union) charged an employer, Winship Green  Nursing Center

(Winship), with violating  the Lanham Act, 15 U.S.C.    1051-1127

(1994),  through  its  unauthorized  use  of  a service  mark  on

propaganda disseminated during a union organizing campaign.1  The

district court granted Winship's  motion for brevis  disposition,                                                             

reasoning that  the Union's  claim failed to  satisfy the  Lanham

Act's jurisdictional  requirements because  (1) the  parties were

not  competing for  the  sale  of  commercial services,  and  (2)

Winship's  admittedly  unauthorized  use   of  the  mark  was  in

connection with  services offered  by the markholder  rather than

services offered by  the infringer.   See International Ass'n  of                                                                           

Machinists  v. Winship Green Nursing Ctr., 914 F. Supp. 651, 655-                                                   

56 (D. Me.  1996).  The  Union appeals.   We affirm, albeit  on a

different ground.

I.  BACKGROUND          I.  BACKGROUND

          We present the basic facts in the light most flattering

to  the party vanquished by  summary judgment.   All the relevant

events occurred in 1994, and all dates refer to that year.

                                A                                          A

          In May  the Union  mounted a  campaign to organize  the

                                                  

     1An IAM  official, Dale Hartford,  is also a  plaintiff, and
two affiliates  of Winship (Hillhaven Corp.  and First Healthcare
Corp.) are codefendants.  Since the  presence of these additional
parties  does not  affect  the issues  on  appeal, we  treat  the
litigation  as  if it  involved  only  the  Union (as  plaintiff-
appellant) and Winship (as defendant-appellee).

                                2

nonprofessional employees  at Winship's facility in  Bath, Maine.

Not   surprisingly,  management  resisted   this  initiative  and

exhorted the affected employees to vote against IAM's election as

a collective bargaining  representative.  As  part of its  retort

Winship  hand-delivered  two  pieces  of  campaign  literature to

employees in the putative  bargaining unit.  These handouts  form

the basis for IAM's lawsuit.

          1.  The  First Flier.   In July  Winship distributed  a                    1.  The  First Flier.                                        

three-page flier, the first page of which asks rhetorically:

          WHAT  WOULD YOU  DO IF  YOU GOT  THE ATTACHED
          LETTERS?
          WOULD YOU BE ABLE TO FIND ANOTHER JOB?
          HOW WOULD YOU PAY YOUR BILLS?
          WOULD YOU WISH THAT THE MACHINISTS UNION  HAD
          NEVER GOTTEN IN AT WINSHIP GREEN?

The  flier then advises recipients  that "IT'S NOT  TOO LATE" and

implores them  to "GIVE  [certain  named managers]  A CHANCE"  by

"VOT[ING] NO ON  AUGUST 4."  The  letters, addressed individually

to particular  employees and dated  one year after  the scheduled                                                            

election, comprise the second and third pages of the flier.   One

letter purports to be written on the Union's letterhead, complete

with a reproduction of the IAM service mark  (consisting of a set

of  machinist's tools surrounded by a gear and the IAM name)2 and

the facsimile signature of an IAM plenipotentiary, Dale Hartford.

                                                  

     2Service marks  and  trademarks  function  to  identify  the
source  of  services and  goods,  respectively.   The  difference
between the  two types of marks is not relevant here, and thus we
will apply case law involving either form.  See Star Fin. Servs.,                                                                           
Inc. v. AASTAR Mortgage Corp., 89  F.3d 5, 8 n.1 (1st Cir. 1996);                                       
Volkswagenwerk Aktiengesellschaft  v. Wheeler, 814  F.2d 812, 815                                                       
n.1 (1st Cir. 1987).

                                3

This  missive suggests that the Union had notified Winship of its

obligation,   pursuant  to  an   invented  collective  bargaining

agreement, to terminate the recipient's employment because of her

failure  to  pay certain  assessments  (e.g., union  dues  and an

initiation fee).  The other epistle, signed by Winship's director

of  operations, is  also  postdated.   It acknowledges  Winship's

receipt  of the notice and professes to inform the addressee that

the company must honor the Union's request.

          2.   The Second Flier.  The remaining piece of campaign                    2.   The Second Flier.                                         

literature,  disseminated  by  Winship  a  few  days  before  the

election, urges the reader to vote against unionization and warns

that union  membership will bring  significant financial burdens.

This  flier  contains  a  simulated  invoice  inscribed  on  what

purports  to be IAM's letterhead (and which bears the IAM service

mark).  Under  a heading  that reads "PAYABLE  TO THE  MACHINISTS

UNION BY [employee's name]", the invoice lists amounts designated

as  union  dues, an  initiation  fee,  and  fines.3   Commentary,

undiluted by subtlety, accompanies this listing:  "NO MATTER WHAT

THE  UNION HAS  TOLD  YOU    JUST ASK  THE  EMPLOYEES AT  LOURDES

HOSPITAL" AND "JUST ASK  THE 13 EMPLOYEES AT GENERAL  ELECTRIC IN

SOUTH PORTLAND  WHO  WERE  FINED  FOR CROSSING  THE  PICKET  LINE

THERE."    Large,  bold letters  at  the  bottom  of the  invoice

proclaim:  "WITHOUT THE MACHINISTS UNION, DO NOT PAY THIS BILL."

                                                  

     3The  stated  amounts  are  not  only  apocryphal  but  also
extravagant.    During  the   organizing  drive,  IAM  repeatedly
declared  that there  would  be no  initiation  fee and  that  no
worker's monthly dues would exceed $20.

                                4

          Notwithstanding Winship's tactics   or, perhaps, due to

them    the employees  chose IAM  as their  collective bargaining

representative in the August 4 election.

                                B                                          B

          The Union  proved to be a  sore winner.  It  soon filed

suit against Winship  alleging inter alia  trademark infringement                                                   

and unfair competition under the Lanham Act.4  The Union premised

its  federal claims on the theory that Winship's unauthorized use

of the registered service mark occurred "in connection with . . .

services," namely, IAM's  representational services, and  thereby

transgressed sections 32(1) and 43(a) of the  Lanham Act.  See 15                                                                        

U.S.C.     1114(1)(a)  &amp;  1125(a) (quoted  infra  note 5).    The                                                          

district court  rejected this  theory for the  reasons previously

mentioned.   See  IAM, 914  F.  Supp.  at 655-56.    This  appeal                               

followed.

II.  THE SUMMARY JUDGMENT STANDARD          II.  THE SUMMARY JUDGMENT STANDARD

          Though the case  is unconventional,  the generic  legal

standard  that we  must apply  is prosaic.   Summary  judgment is

appropriate in  trademark infringement cases,  as elsewhere,  "if

the  pleadings,  depositions,  answers  to  interrogatories,  and

admissions on  file, together with  the affidavits, if  any, show

                                                  

     4IAM's  complaint  also  embodied a  salmagundi  of  pendent
state-law  claims.   The  district court  dismissed these  claims
without prejudice  coincident with the entry  of summary judgment
on  the federal  claims.   See  IAM,  914 F.  Supp. at  656.   We                                             
understand  that the Union is pursuing these claims in a separate
state  court action.   Finally,  the complaint  sought injunctive
relief  under  the Norris-LaGuardia  Act,  29  U.S.C.     101-115
(1994), but the Union now concedes the infirmity of this request.

                                5

that  there is no genuine issue as  to any material fact and that

the moving party is entitled  to a judgment as a matter  of law."

Boston  Athletic Ass'n  v. Sullivan,  867 F.2d  22, 24  (1st Cir.                                             

1989) (quoting Fed.  R. Civ.  P. 56(c)).   Generally speaking,  a

fact is "material" if  it potentially affects the outcome  of the

suit, see Garside  v. Osco Drug, Inc., 895 F.2d  46, 48 (1st Cir.                                               

1990),  and  a  dispute over  it  is  "genuine"  if the  parties'

positions on the issue are supported by conflicting evidence, see                                                                           

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).  While                                         

an  inquiring court is constrained  to examine the  record in the

light  most favorable  to the  summary judgment  opponent and  to

resolve  all reasonable  inferences  in that  party's favor,  see                                                                           

Hachikian v. FDIC, 96  F.3d 502, 504 (1st Cir. 1996), defeating a                           

properly  documented motion  for summary  judgment  requires more

than  the jingoistic brandishing of  a cardboard sword.   This is

especially  true  in respect  to claims  or  issues on  which the

nonmovant  bears the burden  of proof; in  such circumstances she

"must reliably  demonstrate  that specific  facts  sufficient  to

create an authentic dispute exist."  Garside, 895 F.2d at 48; see                                                                           

also Anderson, 477 U.S. at 256.                       

          We review de novo the district court's grant of summary

judgment.  See Mack  v. Great Atl. &amp; Pac. Tea  Co., 871 F.2d 179,                                                            

181  (1st Cir.  1989).   Moreover, an  appellate tribunal  is not

bound by the lower  court's rationale but may affirm the entry of

judgment  on any independent ground  rooted in the  record.  See,                                                                          

e.g., Hachikian, 96 F.3d at 504; Garside, 895 F.2d at 49.                                                  

                                6

III.  ANALYSIS          III.  ANALYSIS

          Our analysis proceeds in five parts.

                                A                                          A

          Trademark  infringement  and  unfair  competition  laws

exist largely  to protect  the public  from  confusion anent  the

actual source of goods or services.  See, e.g., Star Fin. Servs.,                                                                           

Inc. v.  AASTAR Mortgage  Corp., 89  F.3d 5,  9 (1st  Cir. 1996);                                         

DeCosta v. Viacom Int'l, Inc., 981 F.2d 602, 605 (1st Cir. 1992),                                       

cert. denied, 509 U.S. 923 (1993); 3 J. Thomas McCarthy, McCarthy                                                                           

on Trademarks and Unfair Competition   23.01  (3d ed. 1996).  The                                              

Lanham  Act is cast  in this mold.   Generally speaking,  the Act

proscribes the  unauthorized  use  of a  service  mark  when  the

particular usage causes a likelihood of confusion with respect to

the identity of  the service  provider.5  See  WCVB-TV v.  Boston                                                                           
                                                  

     5Section  32(1)  of  the  Lanham  Act  governs  infringement
claims.  It stipulates in pertinent part:
               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; . . .

               shall be  liable in a  civil action
               by the registrant . . . .

15  U.S.C.   1114(1) (emphasis supplied).   Section 43(a) governs
unfair competition claims.  It stipulates in pertinent part:
          Any person who, on  or in connection with any

                                7

Athletic Ass'n, 926 F.2d 42, 44 (1st Cir. 1991); see also Societe                                                                           

des Produits Nestle, S.A.  v. Casa Helvetia, Inc., 982  F.2d 633,                                                           

641 (1st  Cir. 1992) (explaining  in respect  to trademarks  that

"only  those appropriations . .  . likely to  cause confusion are

prohibited").  Consequently, likelihood of confusion often is the

dispositive  inquiry in a Lanham  Act case.   See, e.g., WCVB-TV,                                                                          

926  F.2d  at  44; Pignons  S.A.  de  Mecanique  de Precision  v.                                                                       

Polaroid Corp.,  657 F.2d 482,  492 (1st  Cir. 1981).   So it  is                        

here.

                                B                                          B

          To demonstrate likelihood of confusion a markholder (or

one claiming by,  through, or under her) must  show more than the

theoretical   possibility  of  confusion.    See  American  Steel                                                                           

Foundries  v.  Robertson, 269  U.S.  372,  382 (1926)  (requiring                                  

probable confusion); Star, 89 F.3d at 10 (requiring evidence of a                                   

substantial likelihood of confusion); accord 3 McCarthy, supra,                                                                          

23.01[3][a].   Just as one tree  does not constitute a forest, an

                                                  

          goods or services, . . . uses in commerce any
          word, term,  name, symbol, or device . . . or
          any false designation of origin . . . which  
               (A) is likely  to cause  confusion,                                                           
               or to cause  mistake, or to deceive
               as   to   .   .   .   the   origin,
               sponsorship,  or approval  of [such
               person's]   goods,   services,   or
               commercial  activities  by  another
               person . . .

          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 an act.

15 U.S.C.   1125(a) (emphasis supplied).

                                8

isolated instance of confusion does not prove probable confusion.

To the contrary,  the law  has long demanded  a showing that  the

allegedly  infringing conduct  carries  with it  a likelihood  of

confounding   an   appreciable  number   of   reasonably  prudent

purchasers exercising ordinary care.   See McLean v. Fleming,  96                                                                      

U.S.  245, 251 (1877); Mushroom Makers, Inc. v. R.G. Barry Corp.,                                                                          

580  F.2d 44,  47 (2d  Cir. 1978),  cert.  denied, 439  U.S. 1116                                                           

(1979); Coca-Cola  Co. v.  Snow Crest Beverages,  Inc., 162  F.2d                                                                

280, 284 (1st  Cir.), cert. denied,  332 U.S. 809  (1947).   This                                            

means,  of course,  that confusion  resulting from  the consuming

public's  carelessness, indifference, or  ennui will not suffice.

See,  e.g., United States v.  88 Cases, More  or Less, Containing                                                                           

Bireley's Orange Beverage, 187 F.2d 967, 971 (3d Cir.) (inferring                                   

that "the  legislature contemplated the reaction  of the ordinary

person who is neither savant nor  dolt, [and] who . . . exercises

a normal measure  of the  layman's common  sense and  judgment"),

cert. denied, 342  U.S. 861 (1951); see also  Indianapolis Colts,                                                                           

Inc. v. Metropolitan  Baltimore Football Club Ltd.,  34 F.3d 410,                                                            

414  (7th Cir.  1994) (explaining  that the  Lanham Act  does not

"protect the most gullible fringe of the consuming public").

          We  typically  consider   eight  factors  in  assessing

likelihood  of confusion:  (1)  the similarity of  the marks; (2)

the similarity  of the  goods (or, in  a service  mark case,  the

services); (3) the relationship  between the parties' channels of

trade;  (4)  the  juxtaposition  of their  advertising;  (5)  the

classes  of prospective  purchasers; (6)  the evidence  of actual

                                9

confusion; (7)  the defendant's intent in  adopting its allegedly

infringing mark; and (8)  the  strength of the  plaintiff's mark.

See Star,  89 F.3d at 10; Sullivan,  867 F.2d at 29.   While this                                            

compendium  does not conform easily to the peculiar facts of this

case,  it  is  not  intended  to  be either  all-encompassing  or

exclusive.   See DeCosta v. CBS,  Inc., 520 F.2d 499, 513-14 (1st                                                

Cir.  1975),  cert. denied,  423 U.S.  1073  (1976).   The listed                                    

factors are meant to be used as guides.  See Astra Pharmaceutical                                                                           

Prods., Inc.  v. Beckman Instruments,  Inc., 718 F.2d  1201, 1205                                                     

(1st Cir. 1983).   No one listed factor is determinative, and any

other  factor that  has a  tendency to  influence the  impression

conveyed to  prospective purchasers by  the allegedly  infringing

conduct  may  be weighed  by the  judge  or jury  in  gauging the

likelihood of confusion.  We completely agree with the authors of

the Restatement  that "[n]o mechanistic  formula or list  can set

forth  in advance the variety  of factors that  may contribute to

the particular marketing context of an actor's use."  Restatement

(Third) of Unfair Competition   21 cmt. a (1995).

          Two related  points are  worth making.   First, because

the listed factors  must be evaluated in  context, any meaningful

inquiry  into   the  likelihood  of  confusion  necessarily  must

replicate  the  circumstances  in  which  the  ordinary  consumer

actually confronts  (or probably  will confront)  the conflicting

mark.   See, e.g.,  Libman Co.  v. Vining  Indus., Inc., 69  F.3d                                                                 

1360, 1362 (7th Cir. 1995), cert. denied, 116 S. Ct. 1878 (1996);                                                  

Black  Dog Tavern  Co. v.  Hall, 823  F. Supp.  48, 55  (D. Mass.                                         

                                10

1993).   Second, Rule  56 places a  special gloss upon  the usual

analytic approach.  On summary  judgment the reviewing court must

decide  whether the evidence as a whole, taken most hospitably to

the markholder,  generates a  triable issue  as to likelihood  of

confusion.   See Sullivan,  867 F.2d  at 29;  Astra, 718  F.2d at                                                             

1205;  see also 3 McCarthy, supra,   23.11 (observing that, while                                           

legal  precedent governs the analysis, the result of each case is

controlled by the totality of its facts).

          Applying these  principles, we conclude that  the Union

bears  the  burden  here  of adducing  "significantly  probative"

evidence,  Anderson,  477  U.S.  at  249-50  (citation  omitted),                             

tending to show that an appreciable number of  prospective voters

(i.e., employees within the defined bargaining unit) were in fact

likely  to be confused or misled into believing that the service-

marked campaign  literature was produced, sent,  or authorized by

IAM.  The Union has not reached this plateau.

                                C                                          C

          As  we set  the  scene  for  the  main  thrust  of  our

analysis,  we acknowledge that the campaign stump is an odd stage

for playing out  a Lanham Act  drama.  In the  typical commercial

setting, confusion as to  the source of goods or  services occurs

when there is an unacceptably high risk that a buyer may purchase

one product or service in the mistaken belief that she is  buying

a different product  or service.  See, e.g., Star,  89 F.3d at 9.                                                           

But the instant case is well off  the beaten track.  It does  not

involve  two entrepreneurs  vying to  sell competing  products or

                                11

services  in the traditional sense.   Rather, IAM  was angling to

represent the workers and,  although Winship opposed that effort,

it was neither offering nor seeking to provide a similar service.

In  the  vernacular of  the  marketplace, IAM  was  "selling" its

services to prospective union members and Winship was "selling" a

negative   the  lack of a need for any  such services or service-

provider.

          This twist  has significant implications for  a court's

assessment  of  the  likelihood  of confusion.    If  we  assume,

favorably to the  Union, that confusion as  to the source  of the

documents bearing  the IAM service  mark may at  least indirectly

deter prospective purchasers (voters within the bargaining  unit)

from acquiring (voting for) IAM's representational services, that

deterrent will exist only  if, and to the extent  that, confusion

causes  purchasers to be misinformed about the nature or value of

the  services.   We  think it  follows  inexorably that,  if  the

electorate  can readily  identify Winship  as  the source  of the

promotional  materials,  the  deterrent  vanishes.    See,  e.g.,                                                                          

McIntyre v. Ohio  Elections Comm'n,  115 S. Ct.  1511, 1519  n.11                                            

(1995) (suggesting that once people know the source of a writing,

they can  evaluate its  message, and, at  that point, "it  is for

them to decide what is responsible, what is valuable, and what is

truth") (citation and internal quotation marks omitted).  In that

event,  there is no misleading as to  the genesis of the letters,

and the  voters can assess whether  the Winship-authored handouts

accurately describe the Union's services, or, instead, are merely

                                12

a   manifestation  of  Winship's  no-holds-barred  commitment  to

dissuade  the  voters  from  "purchasing" those  services.    Put

another  way, knowledge as to the source of the materials dispels

incipient confusion.

          The Union attempts to confess  and avoid.  It  contends

that  the recipients'  ability  to ascertain  the  source of  the

documents does not necessarily negate confusion.  This contention

hinges on the  theory that  employees may have  thought that  the

letters,  even  if delivered  by  the  company, were  actual  IAM

documents which  Winship procured  and then draped  in anti-union

invective.  But  that theory does not  fit the facts:   patently,

this  is neither  an  instance in  which an  employer distributes

copies  of a  notice  previously sent  by  a union  to  employees

elsewhere  and adds anti-union  commentary, nor  one in  which an

employer makes minor emendations  to an authentic union document.

The  letters  and  the  invoice  are composed  around  names  and

circumstances  indigenous  to   this  particular   organizational

effort.   Among other things, the letters bear a date significant

in its  relation to  the  scheduled election;  they address  each

Winship employee by name and home address; and they identify this

employer.   Source-identifiers specific  to the Winship  election

are even more pervasive in the fictitious invoice.

          The Union's fallback position seems to be that, even if

it is nose-on-the-face plain that the letters and the invoice are

not  replicas of  genuine IAM  materials, the  affected employees

still may have believed  that they somehow were based  on genuine

                                13

materials.  We think  this construct is both legally  unsound and

factually unsupported.  In the first place, a recipient's ability

to  recognize that the alleged infringer, at a minimum, must have

substantially  added  to or  altered  a  document alleviates  any

confusion as to its immediate source.   Cf. Warner Bros., Inc. v.                                                                        

American Broadcasting  Cos., 720  F.2d 231,  246  (2d Cir.  1983)                                     

(suggesting that  lack of  substantial similarity leaves  "little

basis"  for asserting  likelihood of  confusion  in a  Lanham Act

claim).    In  the  second place,  even  indulging  the  arguendo

assumption that  the contrived  documents  were based  on a  real

scenario, the  alterations  are sufficiently  extensive  that  an

ordinary recipient,  possessing a modicum  of intelligence, could

not help but recognize that Winship had tampered so substantially

with  the documents  that they  could no  longer be  perceived as

emanating  from  the  Union.6   In  other  words,  the documents'

credibility  would depend  on the  voters' assessment  of whether

Winship was  telling the truth.  See McIntyre, 115 S. Ct. at 1519                                                       

                                                  

     6An  analogous principle  in  copyright law  is instructive.
Absent  direct evidence  of copyright  infringement, a  plaintiff
must prove "substantial  similarity" between the  copyrighted and
contested materials.   See, e.g.,  NEC Corp. v.  Intel Corp.,  10                                                                      
U.S.P.Q.2d 1177, 1183 (N.D.  Cal. 1989).  The applicable  test is
"whether the work  is recognized  by an observer  as having  been
taken from the copyrighted source."  Id. at 1184.  Even if a work                                                  
is  copied,   however,  no  copyright   infringement  exists   if
substantial  changes  render the  work  unrecognizable.   See  v.                                                                       
Durang, 711 F.2d  141, 142  (9th Cir. 1983)  (affirming grant  of                
summary judgment  for the defendant); NEC Corp., 10 U.S.P.Q.2d at                                                         
1186-87; cf. A. Dean Johnson, Music  Copyrights:  The Need for an                                                                           
Appropriate  Fair Use Analysis  in Digital  Sampling Infringement                                                                           
Suits, 21 Fla. St. U. L. Rev. 135, 158-59 (1993)  (noting greater               
likelihood of fair  use in copyright cases if  alterations render
an original music recording unrecognizable).

                                14

n.11  (discussing the  value  of  knowing  "the identity  of  the

source"  for the  purpose of  judging the  truthfulness of  ideas

contained  in a writing).  We conclude, therefore, with regard to

these  documents, that as long  as employees can ascertain either

who authored  or who substantially modified  the literature, they

will   readily  recognize  the  entire  document  (including  the

letters,  in one  case, and the  invoice, in the  second case) as

propaganda, and they will be in  a position to gauge its accuracy

accordingly.

          This emphasis on source recognition  takes into account

the  setting  and  the  juxtaposition of  the  parties.    Labor-

management  relations  have  not  mellowed  since  Justice  Clark

observed three decades  ago that representational  campaigns "are

ordinarily  heated  affairs .  .  .  frequently characterized  by

bitter  and extreme  charges,  countercharges, unfounded  rumors,

vituperations,   personal  accusations,   misrepresentations  and

distortions."  Linn v.  United Plant Guard Workers of  Am., Local                                                                           

114, 383  U.S. 53,  58 (1966).   Because  exaggeration, sometimes             

crossing  the line into outright  falsehood, is a  staple in such

campaigns, "consumers"  (i.e., affected  workers)  are on  notice

that both sides likely  will embellish with scant regard  for the

confining restraints imposed  by the truth.  See Baumritter Corp.                                                                           

v.  NLRB,  386  F.2d  117   (1st  Cir.  1967)  (explaining   that                  

inaccuracies are  indigenous to campaign propaganda  in the labor

relations  milieu).  The  acrimonious literature  disseminated by

both parties indicates that this campaign was no exception to the

                                15

rule.7

                                D                                          D

          Having woven the contextual tapestry  against which the

Union's  claims must  be  viewed, we  turn  now to  the  octet of

factors that typically inform the likelihood of confusion.  While

the strange configuration of  this case renders certain of  those

factors irrelevant or, at least, difficult to apply   square pegs

never  fit snugly  in round  holes    we make  the effort  in the

interest of completeness.  Moreover, other relevant circumstances

compensate to some degree for this lack of fit and we intersperse

them throughout our discussion.  We deem such circumstances to be

of especially  great importance here precisely  because this case

falls well outside the customary confines of the Lanham Act.

          1.   Similarity  of Marks.   The  service mark  used by                    1.   Similarity  of Marks.                                             

Winship  is not merely similar;  it is identical    a photocopied

reproduction.  Still,  similarity is determined  on the basis  of

the designation's total  effect, see, e.g., Pignons, 657  F.2d at                                                             

487 (considering additional,  source-identifying words printed on

goods and substantial differences in packaging), and infringement

"does not exist, though the marks be identical and the goods very

similar,   when  the   evidence  indicates   no   [likelihood  of

confusion]."  James Burrough Ltd. v. Sign of the Beefeater, Inc.,                                                                          
                                                  

     7For  example, one  IAM  flier of  the  "when did  you  stop
beating your wife?"  variety, asks:   "WHAT LIES  OR HALF  TRUTHS
DO[ES  WINSHIP] PLAN  TO  SPREAD DURING  OUR  DEBATE?"   The  IAM
materials also describe anticipated "company tactics" or "tricks"
in  unflattering  terms  and  warn  employees  to  "LOOK OUT  FOR
CORPORATE  TRAPS."    The  Winship  literature,  discussed above,
speaks for itself.

                                16

540  F.2d  266, 274  (7th  Cir. 1976).    What is  more,  we have

recognized that in certain  circumstances otherwise similar marks

are  not likely to  be confused if  they are  used in conjunction

with  clearly displayed names,  logos or other source-identifying

designations of the manufacturer.  See Aktiebolaget Electrolux v.                                                                        

Armatron Int'l, Inc., 999 F.2d 1, 4 (1st Cir. 1993); Pignons, 657                                                                      

F.2d  at  487.   Here,  the lengthy  propagandistic  message that

Winship printed in large  type on the fictitious invoice  and the

conspicuous, easily identifiable fliers  it sent to introduce the

letters dilute  the inference that might otherwise  be drawn from

the similarity between the marks.

          2.  Similarity of Services.  Because the parties do not                    2.  Similarity of Services.                                              

offer competing  services, there is no  similitude.  Furthermore,

even  if the documents  are evaluated in the  abstract, we do not

think that  any reasonable person, viewing them in their entirety

and in  conjunction with  the accompanying materials,  would find

them similar to IAM's authentic campaign literature.

          On the one hand, any similarity to actual IAM materials

is limited to the vitriolic tone, the presence of the IAM service

mark, and the facsimile signature.  On the other hand, unlike any

genuine IAM  communication, the letters  are postdated by  a full

year and address  the employees as if  they already had opted  in

favor of union representation.  The next piece of propaganda (the

invoice) contains  anti-union messages  that are longer  and much

more  prominent than  any other  text.   And, moreover,  in stark

contrast to  handbills distributed by IAM  which invariably urged

                                17

employees to vote "yes" (i.e., for a union), the letters at issue

were attached to rabidly anti-union fliers exhorting employees to

vote "no" (i.e., against a union).  In  short, the bogus letters,

when compared to  the real McCoy,  are distinctive in  appearance

and antithetical  in content.  Given  such gross dissimilarities,

it cannot reasonably be  inferred that ordinarily prudent workers

would be likely to confuse the source of the letters.   See Senco                                                                           

Prods.,  Inc. v.  International Union  of  Elec. Workers,  311 F.                                                                  

Supp.  590,  592  (S.D.  Ohio 1970)  (finding  no  likelihood  of

confusion as to  sponsorship of handbills  circulated by a  union

bearing  employer trademark  in  bold print  on  the first  line,

followed by union identifiers of equal prominence).

          3-5.   Channels  of Trade  and Advertising;  Classes of                    3-5.   Channels  of Trade  and Advertising;  Classes of                                                                           

Prospective Purchasers.   Following circuit precedent, see Equine          Prospective Purchasers.                                                                           

Technologies, Inc.  v. Equitechnology, Inc., 68 F.3d 542, 546 n.5                                                     

(1st  Cir.  1995),  we address  the  next  three  factors in  the

ensemble.   The parties'  channels of trade  are widely disparate

(reduced to  bare  essence, IAM  sells representational  services

whereas  Winship  sells  nursing  home  beds),  and  there  is no

evidence   that  the  channels  advertising  those  services  are

similar.

          To  be sure, as the  election campaign picked up steam,

both  parties  propagandized  (and, in  that  sense,  advertised)

through  the  same  medium (print),  and  both  of  them targeted

exactly  the same  narrowly-defined  cadre of  individuals.   The

class  of prospective  purchasers  is necessarily  restricted  to

                                18

those  individuals and  is,  therefore, identical.   Still,  that

identicality does  not advance the  Union's cause in  the special

circumstances of this case.

          On  this point,  the requisite  inquiry is  not limited

merely to determining whether the class of prospective purchasers

is the same or different.   Instead, a court called upon to assay

likelihood  of confusion  must ponder  the sophistication  of the

class, thereby taking account of the context in which the alleged

infringer uses the mark.  See, e.g., Astra, 718 F.2d  at 1206-07;                                                    

HQ  Network Sys.  v. Executive Headquarters,  755 F.  Supp. 1110,                                                     

1118-19 (D. Mass.  1991).  Here, the  organizational effort began

in  May.  Among  other things, the  Union held open  meetings and

sent the  affected workers periodic "organizing  updates."  Thus,

by  late July   when  Winship began to  distribute the challenged

documents   persons within  the class could not help  but know of

the ongoing campaign and of its excesses.

          We  must presume that  the class members  are of normal

intelligence,  see McLean, 96 U.S.  at 251; Church  of the Larger                                                                           

Fellowship, Unitarian Universalist v. Conservation Law Found.  of                                                                           

New Eng., Inc.,  221 U.S.P.Q. 869,  873 (D. Mass. 1983),  and the                        

previous months'  electioneering would have given  them a certain

degree of  enforced sophistication.   Common sense  dictates that

this group    above all others   would  filter the rivals' claims

through the seine of this knowledge.  Cf. Linn, 383 U.S. at 60-62                                                        

(discussing  the  NLRB's  toleration  of  abusive and  inaccurate

statements made during organizational campaigns and agreeing that

                                19

the ultimate appraisal  of such  statements must be  left to  the

good sense of those voting in the elections).  Accordingly, class

members  were  especially  unlikely  to be  misled  by  Winship's

unauthorized use of the IAM mark.

          6.   Actual  Confusion.   IAM proffers  Dale Hartford's                    6.   Actual  Confusion.                                          

affidavit as the mainstay of its case (indeed, its solitary piece

of evidence) on  the issue  of actual confusion.   The  affidavit

states briefly  that "several"  employees asked  whether Hartford

had in fact written the letter that bore his signature.8  It also

reports  that  one  employee  questioned  whether  she  would  be

required to pay $300 in dues and a $200 initiation fee.  Hartford

opines  that "these figures  seem to have  had to have  come from

[the apocryphal union invoice]."   This evidence, standing alone,

is insufficient to prove actual confusion.

          The fundamental problem with  the Hartford affidavit is

that, even taking  its contents  as literally true,  it does  not

undermine what is perfectly obvious from a reading of the record:

no person of ordinary prudence  and normal intelligence, aware of

what was happening around her, would have been confused as to the

source  or  sponsorship  of the  letters.    For  one thing,  the

inquiries to which Hartford alludes reveal at most that employees

doubted whether he would have written a letter unfavorable to the

very  cause he  had labored  to  promote.   On their  face, these
                                                  

     8Although Hartford  recalled that these statements were made
in front of approximately ten other employees at a union meeting,
he claimed that  he could not  locate the list of  attendees and,
consequently,  could not name either the persons who made inquiry
of him or those who overheard the queries.

                                20

inquiries do not evince actual confusion as to the source of  the

jury-rigged  documents.    See   Restatement  (Third)  of  Unfair                                        

Competition     23  cmt.  c  (1995)  ("Evidence  of inquiries  by

customers  as  to whether  the  plaintiff and  the  defendant are

associated  . .  .  may not  establish  the existence  of  actual

confusion if the nature of the inquiries indicates that consumers

perceive a difference between  the designations and are skeptical

of the existence of a connection between the users.").

          For another thing, skepticism is particularly rampant  

and  wise    as to claims  made in  the course  of any organizing                                                                

drive.  In the course of this organizing drive   a struggle which                                       

incited more than its  share of hyperbole  on both sides    class

members  had ample reason to be skeptical.   They must have known

that Winship distributed the fliers (which embodied the letters),

and  they therefore  knew that  the letters had  to be  viewed in

light  of  Winship's motivation.   In  all events,  forewarned is

forearmed,  see Miguel  de Cervantes,  Don  Quixote de  la Mancha                                                                           

(circa 1615), and, here, the Union disseminated literature in the

early  going predicting  that management  would stoop  to dubious

tactics.

          The question about  dues is  an even thinner  reed.   A

lone  inquiry   does  not  indicate  probable   confusion  of  an

appreciable number of purchasers.  See Mushroom  Makers, 580 F.2d                                                                 

at  47.   Regardless, this  lone inquiry    which  questioned the

veracity  of  the prediction  concerning  union dues     does not                  

indicate  confusion as to  the source of  the fictitious invoice.                                               

                                21

See  Pignons,   657  F.2d  at  490   (finding  consumer's  letter                      

expressing  surprise at  perceived affiliation  between competing

companies "clearly insufficient" to prove actual confusion).

          The Union strives  to persuade us  that, no matter  how

paltry  the  evidence  of  actual confusion,  it  is  nonetheless

adequate  to survive  testing on  summary judgment where  we must

accept all reasonable inferences favorable to  the nonmovant.  We

are  not convinced.   The  core purpose  of the  summary judgment

procedure is  to "pierce  the boilerplate  of the  pleadings" and

evaluate  the proof to determine  whether a trial  will serve any

useful purpose.  Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791,                                                            

794  (1st  Cir.  1992),  cert.  denied,  507  U.S.  1030  (1993).                                                

Consequently,  summary judgment cannot be sidestepped by pointing

to  evidence that is  merely colorable or  suggestive, see, e.g.,                                                                          

Mack, 871 F.2d  at 181,  or evidence that  lacks substance,  see,                                                                          

e.g., Mesnick v.  General Elec. Co., 950 F.2d 816,  822 (1st Cir.                                             

1991), cert. denied,  504 U.S.  985 (1992), or  evidence that  is                             

inherently incredible, see, e.g., United States v. Joost, 92 F.3d                                                                  

7, 14 (1st Cir. 1996).

          In this  instance, the  Union  submitted no  affidavits

from  any   individuals  who  personally  received  the  campaign

literature,9 and we  think that it  is inherently implausible  to
                                                  

     9In point of fact, the  only such affidavit in the  record  
that  of an employee named Gail Snipe   states unequivocally that
she "recognized  all of the materials  . . . to  be my employer's
campaign  materials."  She  adds:  "The face  of the documents as
well as the context in which the documents were presented made it
clear that the campaign materials were from the employer, not the
IAM."

                                22

infer from  the inquiries described by  Hartford that prospective

voters  actually were confused as to the source of the materials.

The summary  judgment paradigm requires  us to  draw and  respect

only  reasonable  inferences; we  need  not infer  that  which is                          

farfetched  or fantastic.  See Sheinkopf v. Stone, 927 F.2d 1259,                                                           

1262 (1st  Cir. 1991); Medina-Munoz v. R.J. Reynolds Tobacco Co.,                                                                          

896 F.2d 5, 8 (1st Cir. 1990); Raskiewicz v. Town  of New Boston,                                                                          

754 F.2d  38, 45 (1st Cir.),  cert. denied, 474 U.S.  845 (1985).                                                    

Here, the  face of  the documents,  the accompanying  fliers, the

environment  in  which they  were  distributed, and  the  lack of

significantly  probative evidence of  actual confusion combine to

render unreasonable the inference that IAM would have us draw.

          7.  Intent.   IAM relies heavily on the  principle that                    7.  Intent.                              

when an  alleged infringer  intentionally copies a  trademark, it

may be presumed that  she intended to cause confusion  and profit

thereby.10  See Sullivan, 867 F.2d at 34.  But the presumption is                                  

inapposite in situations where there is no persuasive evidence of

any intent  to use the mark to suggest official sponsorship.  See                                                                           

WCVB-TV, 926 F.2d at  45-46 (attaching considerable importance to                 

the  alleged  infringers'  contemporaneous  offer   to  broadcast

disclaimers,  thus  making  clear  that they  were  not  official

sponsors of the trademarked product).
                                                  

     10This  rebuttable presumption works with maximum efficiency
in the  commercial setting.  There, an infringer typically copies
a trademark  to palm off her  own goods as those  of a recognized
manufacturer, thereby free riding on the  markholder's reputation
and  goodwill.   See  generally McCarthy,  supra,    25.01.   The                                                          
presumption  works  less  well  in  cases  that  do  not  involve
competitors.

                                23

          The template of this  case is similar to that  of WCVB-                                                                           

TV.     Winship  incorporated  the  bogus   documents  in  fliers            

prominently displaying anti-union commentary and containing pleas

by  named managers for votes  against unionization.  In addition,

the  fake invoice itself  includes what amounts  to a conspicuous

disclaimer.   Under  the circumstances, no  reasonable factfinder

could    conclude,     notwithstanding    Winship's    purposeful

misappropriation  of  the  IAM  service mark,  that  the  company

intended to mislead employees about the source of the handouts.

          8.   Strength.  Under the Lanham Act strong marks enjoy                    8.   Strength.                                 

the greatest protection against infringement.   See Aktiebolaget,                                                                          

999 F.2d at 5; Pignons, 657 F.2d at 492.  The IAM service mark is                                

robust, having been  duly registered and widely promoted for over

thirty years.  But the  muscularity of a mark, in and  of itself,

does  not relieve  the  markholder  of  the  burden  to  prove  a

realistic likelihood of confusion.  See Aktiebolaget, 999 F.2d at                                                              

5;  Pignons, 657  F.2d  at 492.   Because  the Union  has utterly                     

failed to  produce evidence sufficient  to meet that  burden, see                                                                           

supra, the mark's strength cannot carry the day.               

                                E                                          E

          After giving due weight  to each factor and considering

the unique circumstances that necessarily inform our analysis, we

find no  colorable  basis for  a  likelihood of  confusion,  and,

hence,  no trialworthy  Lanham  Act  claim.    In  reaching  this

conclusion  we stress  the significance  of the  factual setting.

Here, the ambiance powerfully influenced the impression  conveyed

                                24

by  Winship's  unauthorized use  of the  IAM  service mark.   The

parties'  preparations for  the  election  inflamed the  historic

enmity   between   labor   and   management   and   colored   the

communications distributed  by  both protagonists.   The  climate

inevitably conditioned  voters to view with  suspicion any claims

made  by either  party about  the other.   This  suspicion peaked

shortly  before  the election,  and  that is  when  the offending

documents surfaced.  Moreover, the documents, when received, were

affixed  to clearly  identifiable management  propaganda.   These

additional, relevant circumstances  counsel persuasively  against

any realistic possibility of confusion as to 

the source or sponsorship of the mismarked literature.

IV.  CONCLUSION          IV.  CONCLUSION

          Considering  the  record  as  a  whole  in  the  light  most

favorable  to the  summary judgment  loser, we hold  that there  is no

triable issue of  fact as to  likelihood of confusion.   It is  simply

inconceivable that employees who received the challenged literature at

the height  of a  fiercely disputed  union organizing  campaign would,

upon  even  a cursory  glance,  be  apt  to  believe that  IAM  either

distributed or contributed in any meaningful way to these vociferously

anti-union tracts.

          We add a postscript.  The employer wins this appeal, but not

our   admiration.     While  we   strongly  disapprove   of  Winship's

misappropriation of IAM's service  mark, however, the Union has  other

available remedies to redress  that infraction.  See, e.g.,  Linn, 383                                                                           

U.S. at  61 (approving  state-law remedy in  analogous circumstances).

                                  25

For  our  part, we  are  unwilling  to  stretch the  Lanham  Act  into

unfamiliar contours simply for  the sake of punishing conduct  that we

deplore.   While  we are  not  willing to  venture quite  as far  into

uncharted waters as our  concurring colleague   after all,  unlike the

authorities  on  which  she  primarily  relies,  see post,  this  case                                                                   

involves  neither a  political  campaign nor  a  parody    the  policy

concerns  that undergird  her views  fortify our  resolve to  hold the

line.   By  like token,  the special  circumstances that  the district

court described at length,  see IAM, 914 F. Supp. at  653-56   such as                                             

the noncommercial nature of  the unauthorized use, the absence  of any

competition  between  the  parties  in  the representational  services

market, and the fact that Winship did not appropriate the mark for use

"in  connection with"  any services  of its  own    point in  the same

direction.11  We need go no further.

Affirmed.          Affirmed.                  

                      Concurring Opinion Follows  
                                                  

     11We  take no  view  of the  concurring opinion's  suggested
holding,  the grounds on  which the  district court  premised its
ruling, or  the other theories urged by Winship in support of the
judgment  below.   While the  Union's case  may be  vulnerable on
several fronts,  the absence of any  meaningful confusion renders
further comment supererogatory.

                                  26

Saris, U.S.D.J.

          I  concur on the ground  that Winship Green's  misuse of the

union's trademark in its campaign literature during the union election

is not  a commercial use  of the mark  adumbrated by   Sections 32  or

43(a)  of the  Lanham  Act, as  amended,  15 U.S.C.     1114(1),  1125

(1994).

                                   I                                             I

          The union alleges that Winship  Green's use of its trademark

during the election  violated Sections 32 and 43(a) of the Lanham Act.

                                   A                                             A

          Section   32   of  the   Lanham   Act  concerns   "trademark

infringement" and  proscribes misuse of another's registered trademark

in  commerce   "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."12  15 U.S.C.   1114(1)(a) (1994).
                                                  

     12  Section  32 of  the Lanham  Act,  as amended,  states in
pertinent 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 ...
                               * * *
          shall be liable in a civil action by the registrant for
          the remedies hereinafter provided....

                                  27

                                   B                                             B

          Section  43(a)  provides  broader   protection,  prohibiting

"unfair competition" by  use of any mark, registered or  not.  See Two                                                                                

Pesos,  Inc. v. Taco Cabana, Inc., 505  U.S. 763, 768 (1992).  Section                                           

43(a)  prohibits  two  types  of activities:  "false  designations  of

origin,"   15  U.S.C.       43(a)(1)(A)  ("Prong   (A)")  and   "false

descriptions," 15 U.S.C.    43(a)(1)(B)  ("Prong (B)").13   See  Truck                                                                                

Components, Inc. v. K-H Corp., 776 F. Supp. 405, 409 (N.D. Ill. 1991);                                       

3  J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition                                                                                

27.02[3] (3d ed.  1996) (discussing history of  the "two prongs"  of  

                                                  

15 U.S.C.   1114(1) (1994).

     13  Section 43(a) of the  Lanham Act, as  amended, states in
pertinent part:

             1125.    False  designations  of  origin  and  false                                                                           
          descriptions forbidden                                          
          (a)  Civil  action.   (1)  Any  person  who,  on or  in
          connection  with   any  goods  and  services,   or  any
          container for  goods, uses in commerce  any word, term,
          name, symbol, or device, or any combination thereof, or
          any false  designation of  origin, false or  misleading
          description   of   fact,   or   false   or   misleading
          representation of fact, which --
               (A) is  likely to cause mistake, or  to deceive as
               to the affiliation,  connection, or association of
               such  person with  another  person, or  as to  the
               origin,  sponsorship,  or approval  of his  or her
               goods,  services,  or  commercial   activities  by
               another person, or
               (B)  in  commercial   advertising  or   promotion,
               misrepresents    the   nature,    characteristics,
               qualities, or geographic origin  of his or another
               person's    goods,    services,   or    commercial
               activities.
          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.

15 U.S.C.   1125(a) (1994) (emphasis in original).

                                  28

43(a) --    43(a)(1)(A)  ("trademark infringement") and    43(a)(1)(B)

("false advertising").

          Prong (A)14  prohibits false  designations of the  origin or

sponsorship of goods or  services.  15 U.S.C.    1125(a)(1)(A) (1994).

Typical claims under prong (A) would  involve a new trademark that was

confusingly similar to an already established one, or an  attempt by a

defendant  to "palm-off" its goods as those  of a competitor by use of

the competitor's  mark.  See  Truck Components,  776 F. Supp.  at 409;                                                        

McCarthy on Trademarks, supra, at    27.02[4] (describing these claims                                       

as "trademark infringement").  

          In  contrast,  the  protection   under  prong  (B)  is  very

different.    Following  its  amendment  in  1988,  prong (B)  creates

liability   for  misrepresentations   in  commercial   advertising  or

promotion as to the  "nature, characteristics, qualities or geographic

origin" of another person's goods or services.  15 U.S.C.   1125(a)(1)                            

(1994); see also  Trademark Law Revision Act, Pub. L.  100-662,   132,                          

102 Stat. 3946 (1988); U.S. Healthcare, Inc. v. Blue  Cross of Greater                                                                                

Philadelphia, 898 F.2d 914,  921 (3d Cir. 1990) (discussing  effect of                      

1988 amendment  to Lanham Act);   McCarthy on Trademarks, supra,  at                                                                           

27.02[4].   The  Senate Committee  Report accompanying  this amendment

explained the need for this addition to the Act as follows:

               In  one important  area, however,  the courts
          have refused  to apply  the section.   Based  on a
          1969 seventh  circuit  decision, the  courts  have
          held   that  Section   43(a)   applies   only   to
          misrepresentations  about  one's own  products and
                                                  

     14  In 1992 Congress redesignated paragraphs  (1) and (2) of
section 43(a) as subparagraphs  (A) and (B).  See  Oct. 27, 1992,                                                           
Pub. L. 102-542,   3(c), 106 Stat. 3568.

                             29

          services; it does not extend to misrepresentations
          about competitor's products  or services.  Bernard                                                                      
          Food  Indus. v.  Dietene Co.,  415 F.2d  1279, 163                                                
          USPQ 265  (7th Cir. 1969), cert.  denied, 397 U.S.                                                            
          912, 164  USPQ 481  (1970).  The  committee agrees
          that this  effect is  illogical on both  practical
          and  public  policy  levels  and  that the  public
          policy  of deterring  acts  of unfair  competition
          will be served if Section 43(a) is amended to make
          clear  that   misrepresentations  about  another's
          products are as  actionable as  misrepresentations
          about one's own.

S. Rep. No. 515,  100th Cong., 2d Sess. (1988), reprinted in 1988                                                                      

U.S.C.C.A.N.  5577; see also  McCarthy on Trademarks, supra, at                                                                       

27.02[4] (stating that 1988 amendment codified "two  prongs" of  

43(a): "part  one relat[ing]  to .  .  . unregistered  trademark,

tradename  and  trade dress  infringement  claims,  and part  two

relat[ing] to  . . . false  advertising (as well  as trade libel)

claims").  Thus, prong (B) prohibits misrepresentations about the

quality   of  a   defendant's  own  goods   --  even   where  the

misrepresentations do not tend to confuse its goods with those of

a competitor or otherwise misstate the origin  of the goods -- as

well  as affirmative misrepresentations about another's products.

Truck  Components,  776 F.  Supp. at  409  (citing In  re Uranium                                                                           

Antitrust Litigation,  473 F. Supp.  393, 408 (N.D.  Ill. 1979));                              

see also McCarthy  on Trademarks, supra,  at   27.04  (describing                                                 

elements of prima facie case under prong (B)).                                                          

                                II                                          II

          I am in agreement with the majority that the origin and

sponsorship of  the allegedly  infringing documents was  never in

doubt.  With  respect to section  43(a) of the Lanham  Act, prong

(A)  is  inapplicable because  there  is  no  evidence,  or  even

                                30

contention,  that the  company used the  union's mark  to deceive

bargaining unit members as to the affiliation of the company with

the union or as to the  sponsorship of its services by the union.

Quite the contrary. 

          However, there is evidence  that Winship Green used the

union's  trademark to misrepresent the characteristics and nature

of the  union's services (i.e., the  amount of union  dues or the

purportedly draconian  results of  failure to pay  them), thereby

implicating prong (B), governing  false descriptions.  Cf. Energy                                                                           

Four,  Inc. v. Dornier Medical  Systems, Inc., 765  F. Supp. 724,                                                       

730   (N.D.   Ga.  1991)   (describing   cause   of  action   for

misrepresentation  under  Section   43(a)(1)(B)  and   collecting

cases);  Brandt Consol., Inc. v. Agrimar Corp., 801 F. Supp. 164,                                                        

174  (C.D. Ill. 1992) (same); McCarthy on Trademarks, supra, at                                                                       

27.04   (same).     Because  this   evidence  that   the  company

misrepresented  the union's  services may  be sufficient  for the

fact-finder to find confusion as to the "nature, characteristics,

[or]  qualities"  of the  union's  services,  I would  not  allow

summary judgment for the company under prong (B) on the ground of

a lack of confusion.

                               III                                         III

          A  firm ground for summary judgment, it seems to me, is

that  the Lanham Act  creates no liability  because the deception

did not occur in connection with commercial sales or advertising,

as required under the Act, but rather in campaign hand-outs.   

          The Lanham Act protects only against certain commercial                                                                           

                                31

uses of trademarks.   Section 32 governs the  use of a registered

mark "in commerce . . . in connection with the sale, offering for

sale, distribution, or advertising of any goods or services."  15

U.S.C.   1114(1)(a) (1994).  Section 43(a) is likewise limited to

uses of marks "in commerce," 15 U.S.C.   1125(a)(1) (1994), which

the Act  defines as  using or  displaying a mark  in the  sale or

advertising  of goods or services,15 see 15 U.S.C.   1127 (1994).                                                  

And, section 43(a)(1)(B) limits misrepresentation claims to those

cases involving "commercial advertising or promotion."  15 U.S.C.

  1125(a)(1)(B) (1994).

          While  there is  no appellate  case directly  on point,

trial  courts have rejected efforts  to extend the  Lanham Act to

cases  where  the  defendant  is  not  using  or  displaying  the

trademark in the sale, distribution  or advertising of its  goods

or services.  See  Lucasfilm Ltd. v. High Frontier,  622 F. Supp.                                                            

931, 934 n.2 (D.D.C. 1985) (rejecting  the claim that advertising

companies could be  held liable  for using the  trade name  "Star

Wars"  in the political debate over a national policy because the
                                                  

     15 15 U.S.C.   1127 states in pertinent part:

          The term "use in commerce" means the bona fide use of a
          mark  in the  ordinary  course of  trade, and  not made
          merely to reserve  a right in a mark.   For purposes of
          this chapter, a  mark shall be deemed  to be in use  in
          commerce --
                              * * *
               (2)  on services  when it is used or  displayed in
               the  sale  or  advertising  of  services  and  the
               services are rendered in commerce, or the services
               are  rendered  in more  than one  State or  in the
               United States and a foreign country and the person
               rendering the  services is engaged  in commerce in
               connection with the services.

                                32

trademark laws only reach activities in which a trademark is used

in connection with selling  or advertising services of commercial

or noncommercial  defendants); Stop the Olympic  Prison v. United                                                                           

States Olympic  Comm., 489  F. Supp.  1112, 1124 (S.D.N.Y.  1980)                               

(expressing serious doubts as to  whether the Lanham Act  applies

to the deceptive use of the Olympic trademark by a group opposing

the  conversion  of Olympic  facilities  into a  prison,  in part

because "there is no suggestion that the alleged deception was in

connection with  any goods  or services");  Reddy Communications,                                                                           

Inc.  v. Environmental  Action  Found.,  477  F. Supp.  936,  946                                                

(D.D.C. 1979)  (rejecting  claim that  an  environmental  group's

caricature of an energy industry service mark violated the Lanham

Act  where the  company failed  to prove  that  the environmental

group used the service mark to "identify or  promote" the sale of

its  publications);  see  generally  L.L.  Bean,  Inc.  v.  Drake                                                                           

Publishers, Inc.  811 F.2d 26,  32 (1st Cir. 1987) (holding under                          

a  state anti-dilution state that  a parody was  not a commercial

use of plaintiff's mark because the publisher "did not use Bean's

mark to  identify or  market  goods or  services to  consumers"),

cert. denied, 483 U.S. 1013 (1987).                      

          Nonetheless, some  forms of union-related  activity may

constitute commercial sale or advertising that is protected under

the  Act.   See, e.g.,  Brach  Van Houten  Holding, Inc.  v. Save                                                                           

Brach's Coalition  for Chicago, 856  F. Supp. 472,  475-476 (N.D.                                        

Ill. 1994) (finding Lanham  Act protection applicable where union

used company logo in connection with the sale and distribution of

                                33

its buttons and stickers and solicitation of donations to support

the coalition's opposition to  a plant closing and was  likely to

cause confusion as to the company's affiliation with, or approval

of,  defendant's proposals);  Marriott Corp.  v. Great  Am. Serv.                                                                           

Trades  Council,  AFL-CIO,  552  F.2d 176,  179  (7th  Cir. 1977)                                   

(rejecting   the  union's  contention  that  the  National  Labor

Relations  Board had  exclusive jurisdiction  over an  action for

trademark  infringement arising  under the  Lanham Act  where the

union allegedly  used the  company's trademark  in advertisements

which suggested an affiliation between the company and the  union

in advertising its services  to prospective employees).  However,

such commercial activity is simply not present here.

          Accordingly, the union's  limited property right  under

the  Lanham Act against commercial misuse of its trademark is not

implicated  in this case.  See generally Lucasfilm Ltd., 622 F.2d                                                                 

at 933 ("It is well established that the property right conferred

by  a trademark is very  limited.").  While  the union rightfully

complains about  the company's unfair  tactics, it must  find its

federal  remedy  for  deceptive  campaign  literature  under  the

National  Labor Relations Act, 29  U.S.C.    141  et seq. (1994).                                                                   

See Linn  v. United  Plant Guard Workers  of Am., Local  114, 383                                                                      

U.S. 53, 60 (1966)  (permitting libel action under state  law for

defamatory  statements  published  during  a  union  organization

campaign and discussing authority of the National Labor Relations

Board  to set  aside elections  where "a  material fact  has been

misrepresented  in the  representation campaign;  opportunity for

                                34

reply has  been lacking;  and  the misrepresentation  has had  an

impact on the free  choice of the employees participating  in the

election").  

          Because  the  Court  reaches  the  same conclusion  for

somewhat different reasons, I join in its judgment.

                                35
