           Case: 17-11210   Date Filed: 10/17/2017   Page: 1 of 22


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11210
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:16-cv-02001-GAP-GJK



SUPERIOR CONSULTING SERVICES, INC.,
a Florida corporation
d.b.a. Your Future Health
d.b.a. YFH,

                                              Plaintiff - Appellant,

versus

SHAKLEE CORPORATION,

                                              Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (October 17, 2017)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       Plaintiff-Appellant Superior Consulting Services, Inc., appeals the district

court’s denial of its motion for a preliminary injunction against Defendant Shaklee

Corporation to halt Shaklee’s alleged trademark infringement of Superior’s mark

“HealthPrint.” After a careful review of the record, and for the reasons that follow,

we affirm.

                                         I.

      Superior owns and operates two fictitious business entities, Your Future

Health and YFH, through which it offers a service called “HealthPrint.” Eleanor

Cullen, a registered nurse, developed HealthPrint and founded YFH. Ms. Cullen

declared that Healthprint

      centers around the principle that “normal” blood test scores are not
      good enough to assist person with the early identification of
      potentially serious health problems . . . A Healthprint is customized to
      a client’s unique biochemistry, and it includes a detailed nutrition
      analysis that specifies certain lifestyle changes, foods and
      supplements clients should consume to achieve his or her optimum
      health. Healthprint also identifies additional laboratory tests that
      clients need to improve and optimize their health.

      Superior offers an assortment of HealthPrint packages testing various blood

panels, the most basic of which costs $474.00 and most comprehensive costs

$1,462.00. Additional tests may be ordered, costing anywhere from $45.00 to

$552.00. Accompanying the blood-test order form is a lifestyle survey, including

questions regarding stress levels, alcohol consumption, sleeping habits, and

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medical history. Upon producing the “HealthPrint” with results to the customer,

Superior then recommends certain supplements, but it does not sell them.

      Superior claims that the HealthPrint refers to the “total client profile,” which

does not require the client to undergo a blood test. Clients can choose only to fill

out a comprehensive survey of questions called the “Master Symptom Tracker”

from which Superior produces a “HealthPrint” dictating “certain changes that

could benefit them through their diet, exercise, weight management programs,

water intake, and supplement suggestions.”

      Superior owns two trademarks for the text “HealthPrint,” both of which

appear on the Principle Register.        The application for the first trademark

(registration number 2646571), which was approved in 2002, listed the purpose as

“Nutritional supplements for general health maintenance,” “Printed instructional

and teaching material in the field of health care,” and “consulting services in the

field of health care.” Superior filed a Section 15 declaration of incontestability for

this mark in 2008.

       The application for the second trademark (registration number 2928465),

which was approved in 2005, listed the purpose as “blood testing services;

consultation in the fields of food nutrition, diet and health.” Superior filed a

Section 15 declaration of incontestability for this mark in 2011.




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        The prosecution histories for both trademark applications include various

submissions of brochures, one of which states that “HealthPrint includes a special

group of blood tests that are rarely ordered because they are expensive. . . . YFH

believes that these tests as well as traditional tests must be done to properly

balance your body systems and to prevent many diseases.” ECF No. 21-2 at 2

(emphasis in original). That brochure also explains that “HealthPrint requires a

blood draw at one of thousands of participating collection sites.” Id. (emphasis in

original). Another submission explains that lab ranges are customized “by your

age, sex, blood type, height, and other blood test results—one range does not fit

all.”

        Shaklee is a manufacturer and distributor of natural nutrition supplements as

well as weight-management, beauty, and household products. It does not offer

blood tests. Since August 6, 2016, Shaklee has offered a free, online “Healthprint”

questionnaire that asks various lifestyle questions, including questions regarding

age, sleep, stress levels, exercise regime, memory, and diet. Once a customer

completes the survey, a report is automatically generated based on algorithms. The

report also includes recommendations for certain vitamin supplements or other

products; for example, if customers indicate that they do not regularly eat salmon,

Shaklee will recommend they buy a Shaklee Omega-3 supplement. Upon making

a purchase, customers are assigned to a distributor for further support and


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assistance.   Shaklee claims that it sells most of its supplements through its

distributor network.

      Superior became a distributor for Shaklee in 1978. Although Superior’s

HealthPrint is sold directly to the public online, it is also sold through referrals

from Shaklee’s distributors to Shaklee clients. For example, in the first ten months

of 2016, Shaklee’s clients accounted for 31 percent of Superior’s HealthPrint sales.

In exchange for these referrals, Superior recommends Shaklee supplements to

clients when appropriate.

      Shaklee applied for a trademark for “HEALTHPRINT” on June 8, 2016.

The application states that HEALTHPRINT’s purpose is “life quality assessment

for individuals; and providing information in the fields of personal development

and improvement of quality of life.” A conflict was found regarding the use of the

word “health” in the mark, so the description was changed and approved for

“Providing information in the field of personal development, namely, personal

improvement, and specifically excluding healthcare information.”

                                        II.

      On November 1, 2016, Superior filed a Complaint for injunctive relief and

monetary damages alleging trademark infringement under the Lanham Act, 15




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U.S.C. § 1114, et seq. 1 On December 20, 2016, Superior filed a Motion for a

Preliminary Injunction. The district court held oral arguments and entered an order

on February 21, 2017, denying the preliminary injunction. Superior now appeals.

                                             III.

       We review an order denying a motion for a preliminary injunction for an

abuse of discretion. Forsyth Cty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032,

1039 (11th Cir. 2011).        We review findings of fact for clear error and legal

conclusions de novo. Id. “This scope of review will lead to reversal only if the

district court applies an incorrect legal standard, or applies improper procedures, or

relies on clearly erroneous factfinding, or if it reaches a conclusion that is clearly

unreasonable or incorrect.” Id. (quoting Schiavo ex rel. Schindler v. Schiavo, 403

F.3d 1223, 1226 (11th Cir. 2005)).

       A preliminary injunction is an “extraordinary and drastic remedy” and

should not be granted unless the movant clearly satisfies its burden of persuasion

as to four prerequisites: (1) a substantial likelihood of success on the merits of its

claim at trial; (2) a substantial threat of irreparable harm to the movant if injunctive

relief is denied; (3) the injury to the movant outweighs the potential harm that an

injunction may cause the defendant; and (4) an injunction will not disserve the

       1
          On November 28, 2016, Superior filed an opposition to Shaklee’s application with the
United States Patent and Trademark Officer (“USPTO”), triggering an administrative scheduling
order to resolve the opposition. However, the parties agreed to stay the USPTO proceeding until
20 days after resolution of this civil action.
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public interest. Id. (quoting ACLU of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557

F.3d 1177, 1198 (11th Cir. 2009)); Johnson & Johnson Vision Care, Inc. v. 1-800

Contacts, Inc., 299 F.3d 1242, 1246–47 (11th Cir. 2002). Because we find that

Superior cannot establish the first element, we need not address the remaining

three.

                     A. Substantial Likelihood of Success on the Merits

         The Lanham Act provides that infringement occurs when the defendant uses

“in commerce any reproduction, counterfeit, copy, or colorable imitation of a

registered mark” that is “likely to cause confusion, or to cause mistake, or to

deceive.” 15 U.S.C. § 1114(1). To prevail in an infringement suit, the plaintiff

must demonstrate that (1) its mark has priority, is valid, and protectable and (2) the

defendant’s mark is likely to cause consumer confusion. Frehling Enter., Inc. v.

Int’l Select Group, Inc., 192 F.3d 1330, 1335 (11th Cir. 1999). Because Superior’s

mark is “incontestable,” its validity is conclusively presumed. See Dieter v. B & H

Indus. of S.W. Fla., Inc., 880 F.2d 322, 326 (11th Cir. 1989).

         As a result, we need determine only whether Shaklee’s use of the mark is

likely to cause consumer confusion by considering the following seven factors: (1)

the type of mark, (2) the similarity of marks, (3) the similarity of the products the

marks represent, (4) the similarity of the parties’ retail outlets (trade channels) and

customers, (5) the similarity of advertising media, (6) the defendant’s intent, and


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(7) actual confusion. Frehling, 192 F.3d at 1330. The type of mark and actual

confusion are the most important factors. Id. This Court reviews for clear error

the findings as to each individual factor as well as the overall conclusion regarding

the likelihood of confusion. Id.

       The district court balanced the factors and concluded that Superior could not

establish a likelihood of consumer confusion. Superior does not challenge the

district court’s findings on factor two—that the marks are “indisputably similar”—

and factor five—that both parties “use word-of-mouth, their websites, television,

and various social media networks to market their respective Healthprints.”2

Accordingly, our review is limited to the remaining five factors.

       1. Type of Mark

       Trademark protection is afforded to distinctive marks only. Stronger marks

receive greater protection; conversely, weaker marks receive less protection.

Frehling, 192 F.3d at 1335. Marks are classified under four categories, each

increasing in strength: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary.

Id. Generic marks refer to a “class of which an individual service is a member

(e.g., ‘liquor store’ used in connection with the sale of liquor),” and are the

weakest and thus not entitled to any protection. Id. Descriptive marks refer to a

       2
          The district court added that “[w]hile the types of media used by the parties overlap, the
only evidence provided by Superior that the audience overlaps is the word-of-mouth advertising
though Shaklee’s distributor network. Nevertheless, the Court finds that this factor weighs
slightly in favor of a likelihood of confusion.” (emphasis in original).
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characteristic or quality of a product or service, such as a “vision center” denoting

a store that sells glasses.    Id.   Suggestive marks tap into the consumer’s

imagination to make the connection between a characteristic of the goods or

services and the mark, such as “penguin” for a refrigerator. Id. Finally, arbitrary

marks, which are the strongest of the four types, bear no relationship to the

product. Id. at 1335-36.

      A mark’s registration with the USPTO creates a rebuttable presumption of

distinctiveness. 15 U.S.C. § 1057(b). If the USPTO does not require evidence of

secondary meaning, then the presumption is that the mark is “inherently

distinctive.” Suggestive and arbitrary marks are “inherently distinctive,” so they

require no proof of secondary meaning. Investacorp, Inc. v. Arabian Inv. Banking

Corp. (Investcorp) E.C., 931 F.2d 1519, 1523 (11th Cir. 1991). Descriptive marks

may become distinctive only if they acquire secondary meaning. Dieter, 880 F.2d

at 328.

      Moreover, when a mark is deemed “incontestable,” “it is presumed to be at

least descriptive with secondary meaning, and therefore a relatively strong mark.”

Dieter, 880 F.2d at 329. A mark is “incontestable” when it has been registered

with the USPTO for five years, its holder has filed the affidavit required by 15

U.S.C. § 1065(3), and the USPTO has declared the mark “incontestable.”

Frehling, 192 F.3d at 1336.


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      Here, the district court ultimately concluded that “Superior’s marks are

likely somewhat strong, lying somewhere between suggestive and descriptive.”

This was clear error.

      Superior registered both of its marks with the USPTO after the required time

and acquired the “incontestable” status for both. By definition then, Superior’s

mark is, at a minimum, descriptive and a “relatively strong mark.” See Caliber

Auto. Liquidators, Inc. v. Premier Chrysler, Jeep, Dodge, LLC, 605 F.3 931, 939

(11th Cir. 2012). Furthermore, when Superior registered its marks, the USPTO did

not require any proof of secondary meaning.          As a result, the district court

correctly found that Superior’s mark is entitled to the rebuttable presumption that it

is “inherently distinctive” and thus at least suggestive and entitled to strong

trademark protection.

      The district court clearly erred, however, in concluding that Shaklee rebutted

that presumption with its evidence of third-party usage. Undoubtedly, third-party

use is an important factor in determining distinctiveness and strength. See John H.

Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 974-75 (11th Cir. 1983).

“Where there is a lack of third-party use, the mark’s strength is enhanced, as it is

more distinctive, and therefore more easily recognized by consumers.” Frehling,

192 F.3d at 1336 (citing to Sun Banks of Fla., Inc. v. Sun Fed. Sav. & Loan Ass'n,




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651 F.2d 311, 313 (5th Cir. July 20, 1981) (finding error where district court failed

to factor in third-party usage)).

      Although the number of third parties using the name is important, there is no

magic number of third-party users that weaken a mark. Rather, we assess the

impact of third-party use by considering the “the entire name a third party uses, as

well as the kind of business in which the user is engaged.” Fla. Int’l Univ. Bd. of

Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1257 (quoting Safeway Stores, Inc. v.

Safeway Discount Drugs, Inc., 675 F.2d 1160, 1165 (11th Cir. 1982)) (internal

quotation marks omitted).

      In Florida International University, for example, we held that twelve other

universities’ uses of “Florida” and “University” in their names diminished the

strength of the mark “Florida International University,” particularly where they

were all higher education institutions and all in the same geographic region—

Florida—targeting the same customers. Id. at 1257-58.

      Here, Shaklee presented nine other instances in which the term “Healthprint”

has been used around the country, but unlike in Florida International University,

none is located within the same geographical area as Superior, and none involves

the same kind of business as Superior’s.           See ECF No. 43 at 10-11 (listing

“Healthprint” as used by the State of Utah for a health-care policy; by a San

Franciscan gynecologist for a patient, medical-records online access application;


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by a Nebraskan holistic massage parlor; by a Texan wholesale school-supply

company; by commercial printers in Texas and Pennsylvania; by a medical 3D

printing company; and as a phrase used in a medical study). None of these

instances Shaklee cited occupies the same commercial field as Superior such that

they would weaken the distinctiveness of Superior’s mark. Shaklee also cited a

USPTO registration of “HEALTHPRINT” for patient medical information, but the

fact that both this mark and Superior’s “Healthprint” mark were approved as

trademarks indicates that each was deemed distinctive and not confusingly similar.

      Shaklee also provided numerous instances in which the words “health” and

“print” are used in a variety of contexts and combinations, including “HEALTH

FOOTPRINT” for information concerning nutrition, illness, and wellness;

“BLUEPRINTS FOR HEALTH” for dietary supplements; and other marks related

to supplements such as VITAPRINT, HEALTH PLUS, and NUTRITION

FINGERPRINT. See ECF Nos. 43, 43-12, 43-13, 43-14. These examples occupy

the same general field of health as Superior. But because the “health” category is

infinite, these marks diminish the strength of Superior’s HealthPrint mark only

slightly, particularly because these products are not located in the same geographic

region as Superior’s. Thus, Shaklee failed to present sufficient evidence to rebut

the presumption that Superior’s mark is “inherently distinctive.”




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       Shaklee argued below that “it would be exceptionally difficult to have a

truly ‘strong’ mark composed of the common English words HEALTH and PRINT

as the dominant features of the mark to describe a health-related product or

service.” See ECF No. 43 at 12. But taking Shaklee’s argument to its logical

conclusion would essentially prevent any entity from ever obtaining trademark

protection or succeeding in a suit for infringement if it contains words like “health”

and “print.”3

       Accordingly, while the district court appropriately considered evidence of

third-party use, it clearly erred in finding that Superior’s mark was anything less

than suggestive. Similarity of Products the Marks Represent

       “This factor requires a determination as to whether the products are the kind

that the public attributes to a single source, not whether or not the purchasing

public can readily distinguish between the products of the respective parties.”

Frehling, 192 F.3d at 1338 (citing E. Remy Martin & Co., S.A. v. Shaw–Ross Int'l

Imports, Inc., 756 F.2d 1525, 1530 (11th Cir.1985)). For example, in Frehling, we

explained that a reasonable consumer could possibly believe that the same source

produced both parties’ products because they were both furniture pieces that were

designed for the home and had the capability to hold electronic equipment. That


       3
          This argument is even more troubling considering that Shaklee has also filed a
trademark application for its mark “HEALTHPRINT,” which it has stayed pending resolution of
this action.
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each product was made of different types of materials (one out of metal and

tempered glass and the other out of various woods, marble and stone) and were

sold at vastly different prices was not dispositive. Frehling, 192 F.3d at 1338.

Though we described the question as close call, we nonetheless determined that the

district court applied too much weight in the defendant’s favor. Id.; see also E.

Remy Martin, 756 F.2d at 1530 (finding that a reasonable consumer could have

concluded that the producer of wine could also produce brandy).

      Here, the district court properly found that consumers are not likely to

believe that Superior is producing both comprehensive blood-testing services and a

free questionnaire. Superior has stated, and the evidence depicting its website

clearly indicates, that its “primary objective is the early detection of disease,

through performing certain laboratory tests, including blood tests, for consumers.”

Its list of products indicates that “HealthPrint” is associated with some type of

blood testing, offering services such as the “Basic HealthPrint” and “HealthPrint

Platinum.” The lifestyle questions appear to be secondary to the blood testing.

      Although Superior provided evidence that blood-testing is not required for a

customer to obtain a HealthPrint, the district court correctly noted that the

prosecution history files for Superior’s trademark applications explicitly state that

the “HealthPrint requires a blood draw.”        (Emphasis added).      Superior also

provided a copy of the full survey it offers, which it alleges is similar to Shaklee’s


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questionnaire, and explained that its “HealthPrint” refers to the “combination of

laboratory tests and a series of written questions.” However, Superior’s survey is

titled a “Master Symptom Tracker,” and the instructions say “Please make a copy

of this form and fill it out each time you order your HealthPrint.” This seems to

indicate that the HealthPrint is separate and apart from this survey of questions.

Accordingly, the district court did not clearly err in finding that this factor weighs

in Shaklee’s favor.

      3. Similarity of Parties’ Retail Outlets and Customers

      The likelihood of confusion is greater where the plaintiff and defendant use

similar retail outlets and advertising media and target similar customers. Frehling,

192 F.3d at 1339.     Direct competition is not required to show likelihood of

confusion. Id. Similarly, the outlets and customer bases need not be identical but

rather an overlap should be present. Id. Customer bases may overlap despite

significant price differences in products: “[I]t may be difficult to draw a line

between those consumers who shop at ‘class’ retailers and those who shop at

‘mass’ retailers because of those consumers who ‘cross-shop’ and frequent both

types of retailers.” Id. (internal citation omitted). In Frehling, we held that the

district court clearly erred in weighing this factor too heavily in favor of the

defendant where it based its finding primarily on the relative affluence on each

party’s customer base. Id.


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      The parties here clearly share a customer base and retail outlets, as Shaklee

distributors often refer their clients to Superior, who in turn, recommends Shaklee

supplements when appropriate. In the first ten months of 2016, Shaklee clients

made up 31 percent of Superior’s clientele, and from 2001 to present, over 1,100

Shaklee clients have purchased a HealthPrint from Superior.

      The district court improperly credited Shaklee’s argument that any overlap

should be disregarded because the parties cater to different kinds of people, one

group who is willing to spend hundreds of dollars on blood tests and the other who

just wants something for free. But as the evidence shows, the parties clearly have

customers who have bought products from both parties, suggesting that the two

companies do, in fact, target similar customers. See Frehling, 192 F.3d at 1339.

      Despite this error, we cannot say that the district court clearly erred in

finding this factor “neutral.” While overlap of customers and retail outlets does

exist, the majority of Superior’s customers have no affiliation with Shaklee, so we

cannot say that this factor weighs heavily either way.

      6. Defendant’s Intent

      “If it can be shown that a defendant adopted a plaintiff’s mark with the

intention of deriving a benefit from the plaintiff’s business reputation, this fact

alone may be enough to justify the inference that there is confusing similarity.”

Frehling, 192 F.3d at 1340 (citing John H. Harland Co., 711 F.2d at 977). In


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examining this factor, the district court had to determine whether Shaklee “had a

conscious intent to capitalize on the plaintiff’s business reputation, was

intentionally blind, or otherwise manifested improper intent.” Custom Mfg. &

Eng’g, Inc. v. Midway Servs., Inc., 508 F.3d 641, 648 (11th Cir. 2007).            In

Frehling, for example, we found evidence that the defendant was “intentionally

blind” in adopting its mark where it had notice of the significant similarities in the

marks after the USPTO denied its application to register the mark; it also

manifested improper intent when it deliberately included the plaintiff’s mark in its

own telephone number. Frehling, 192 F.3d at 1340.

      Here, given its decades-long relationship with Superior, Shaklee undeniably

knew of Superior’s Healthprint mark and its success. Shaklee also had prior notice

of a conflict with Superior’s mark when the USPTO required Shaklee to remove

“health” from the description in its trademark application. Nevertheless, we cannot

say the district court clearly erred in finding that this factor weighed in favor of

Shaklee.

      Superior points to Shaklee’s use of a green fingerprint in its mark as

evidence of Shaklee’s ill intent. And indeed, the logos are similar. But Shaklee

produced evidence that it conducted consumer research to pick the logo from a




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variety of choices, including some that were significantly less similar. 4                     That

evidence tends to negate a finding of ill intent.

       Superior further claims that it gave Shaklee confidential, proprietary

information during a conference call about HealthPrint that Shaklee later employed

to develop its own Healthprint. Superior offered no evidence about the content of

the call other than the initial email correspondence from Shaklee’s legal counsel

requesting information about Superior and its services. See ECF No. 20-1.

       Shaklee contended that this conference call had nothing to do with

Superior’s HealthPrint and produced an email chain evidencing that Shaklee

actually contacted Superior because it was concerned that Superior, through

Cullen, was practicing medicine without a license.                     Shaklee also produced

evidence indicating the selection process of names for its questionnaire through

consumer testing. Moreover, this call took place in 2005, and Shaklee did not

develop its Healthprint until eleven years later—in 2016. For these reasons, we

find no clear error in the district court’s determination that this factor weighs in

favor of Shaklee.




       4
         The logo choices included a fingerprint in the shape of a fingerprint, a fingerprint in the
shape of an apple, a partial fingerprint, a stylized form of the letters “HP” against a circle with a
fingerprint background design, and a fingerprint in the shape of a leaf.
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      7. Actual Confusion

      “It is undisputed that evidence of actual confusion is the best evidence of a

likelihood of confusion. However, such evidence is not a prerequisite, and thus it

is up to individual courts to assess this factor in light of the particular facts of each

case.” Frehling, 192 F.3d at 1341 (internal citations omitted). The type of person

confused is most important, rather than the number confused:

      Perhaps as important as, and helping to explain the various
      interpretations of the relevance of, the number of instances of
      confusion are the kinds of persons confused and degree of confusion.
      Short-lived confusion or confusion of individuals casually acquainted
      with a business is worthy of little weight, while confusion of actual
      customers of a business is worthy of substantial weight.

Safeway Stores, Inc. v. Safeway Discount Drugs, Inc., 675 F.2d 1160, 1167 (11th

Cir. 1982) (internal citations omitted); Frehling, 192 F.3d at 1341 (where one

professional buyer acquainted with mark was confused, this raised an inference of

actual confusion but was not sufficiently dispositive so as to favor either party).

      Superior submitted seven affidavits in support of its contention that

Shaklee’s mark has caused actual confusion. Four were from Superior customers

who stated they were confused when they learned about Shaklee’s HealthPrint,

believing that the companies had maybe merged or that Shaklee had purchased

HealthPrint from Superior. They also expressed concern regarding which plan was

better for them and from which company to continue purchasing a HealthPrint.

Another affidavit was from a potential Superior customer who stated that the two
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HealthPrints seem to offer a similar healthcare assessment and that he is inclined to

try Shaklee’s first because it is cheaper. The last two affidavits were from Superior

employees, who noted that they have received numerous calls and emails regarding

the differences between Superior’s and Shaklee’s HealthPrints. The district court

found only one affidavit—from the client unsure which HealthPrint service he was

accustomed to—worthy of “some consideration, but not much.” But the court did

not make an explicit determination of whom this favor weighed in favor.

      Shaklee argues that Superior’s affidavits demonstrate that these customers in

fact knew the difference between the two Healthprints because they sought advice

as to which one better suited their needs; they were not confused as to the source of

the product. We agree. Superior has not produced any evidence of a customer

mistakenly taking Shaklee’s Healthprint questionnaire and thinking he or she was

actually purchasing Superior’s HealthPrint blood tests. Accordingly, we find that

this factor weighs in favor of Shaklee.

                                          IV.

      After evaluating the individual findings as to each factor, we now consider

the overall balance to determine the likelihood of confusion.

      Because the bottom line is the likelihood of consumer confusion,
      application of the Frehling factors entails more than the mechanistic
      summation of the number of factors on each side; it involves an
      evaluation of the “overall balance.” See Frehling, 192 F.3d at 1342;
      see also Jellibeans, Inc. v. Skating Clubs of Georgia, Inc., 716 F.2d
      833, 840 n. 17 (11th Cir.1983) (“We note that the district court should
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      not determine whether a likelihood of confusion exists by merely
      computing whether a majority of the subsidiary facts indicates that
      such a likelihood exists. Rather, the district court must evaluate the
      weight to be accorded the individual subsidiary facts and then make
      its ultimate fact decision.”).

Custom Mfg., 508 F.3d at 649-50.           We determined above that Superior’s

“HealthPrint” is a suggestive and strong mark. However, we also found no actual

confusion, which is given the greatest weight in this analysis. See Frehling, 192

F.3d at 1341. Based on the evidence presented to the district court, there seems to

be no real possibility that a reasonable consumer would mistake the source of

Superior’s blood-test request form with that of Shaklee’s free questionnaire,

particularly where Superior’s website is rife with references to the company’s

focus on laboratory work.

      Furthermore, while the marks themselves are “indisputably similar” and the

parties share similar advertising modes, the products themselves are dissimilar, and

no evidence exists that Shaklee intended to reap the rewards of Superior’s success.

Because their customer bases partly overlap, this factor does not tip the balance

either way.

      Accordingly, it was not clear error for the district court to find that Superior

has not established a likelihood of confusion. Because Superior did not satisfy its

burden of persuasion on the first element required to succeed on a motion for a




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               Case: 17-11210      Date Filed: 10/17/2017       Page: 22 of 22


preliminary injunction, the district court did not abuse its discretion in denying the

motion for preliminary injunction. We therefore affirm the holding below.5

       AFFIRMED.




       5
         Of course, nothing herein precludes Superior from presenting more evidence at the trial
of the permanent injunction. All we say is, based on the record evidence at this juncture,
Superior has not satisfied its burden of persuasion on the first element.
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