                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                              August 12, 2013
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 WATER PIK, INC., a Delaware
 corporation,

             Plaintiff - Appellee,

 v.                                                   No. 12-1065

 MED-SYSTEMS, INC., a Washington
 corporation,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                 (D.C. NO. 1:10-CV-01221-PAB-CBS)


Lisel M. Ferguson (Heather A. Cameron, with her on the briefs), Procopio, Cory,
Hargreaves & Savitch LLP, San Diego, California, for Defendant - Appellant.

Lee F. Johnston (Scott P. Sinor, with him on the brief), Dorsey & Whitney LLP,
Denver, Colorado, for Plaintiff - Appellee.


Before LUCERO, HARTZ, and HOLMES, Circuit Judges.


HARTZ, Circuit Judge.
      The parties to this trademark dispute make consumer products for rinsing

sinus cavities. Med-Systems, Inc., the earlier entrant in this market, sells its

products under the federally registered trademark SinuCleanse and two similar

marks. Water Pik, Inc., which traditionally sold oral irrigators and showerheads,

registered the trademark SINUSENSE with the intention of selling sinus-irrigation

devices under the brand name “SinuSense.” It brought an action against

Med-Systems in the United States District Court for the District of Colorado,

seeking a declaratory judgment that its use of the SinuSense brand name did not

infringe on any of Med-Systems’ marks. Med-Systems counterclaimed for

trademark infringement and unfair competition under the Lanham Act, 15 U.S.C.

§§ 1051–1127. Ruling that the SinuSense brand was not likely to cause consumer

confusion, the district court awarded summary judgment to Water Pik on the

counterclaims and dismissed Water Pik’s declaratory-judgment claim as moot.

We affirm.

I.    BACKGROUND

      Med-Systems was founded in 1997 by Dr. Diane Heatley and David Gallo.

The company’s business is selling nasal-irrigation products. One product line is a

device known as a neti pot, which allows users to rinse their sinus passages with

saline solution. Med-Systems also sells squeeze bottles and saline refill packets

(which contain a powder to add to water to create the saline solution). These

products are sold through a number of pharmacies and retail chains nationwide.

                                         -2-
      Med-Systems has obtained federal registration of three different trademarks

to brand its products: the stylized word mark SinuCleanse, registered in 1998;

the nonstylized word mark SINUCLEANSE, registered in 2008; and the

nonstylized word mark SINUCLEANSE SQUEEZE, also registered in 2008.

There is no dispute that these marks are statutorily incontestable under 15 U.S.C.

§ 1065 (2010). Photographs in the record indicate that the packaging for Med-

Systems’ products conspicuously features the stylized term “SinuCleanse,” with

the first component printed in plain type and the second component italicized.

      Since the 1970s Water Pik has developed, manufactured, and sold oral

irrigators and showerheads. In 2008 it sought to enter the market for sinus-

irrigation products. It expressed interest in acquiring Med-Systems, but

negotiations between the two parties failed in December 2008. Water Pik began

developing its own nasal-irrigation line, which it ultimately decided to market

under the name “SinuSense.” In May 2009 it filed an intent-to-use application for

federal registration of the nonstylized word mark SINUSENSE, and in October

2009 the United States Patent and Trademark Office (PTO) published the mark

for opposition. See 15 U.S.C. § 1051(b)(1) (2002) (allowing a person “who has a

bona fide intention . . . to use a trademark in commerce” to file for registration of

the mark); id. § 1062(a) (2000) (providing that if it appears to the PTO that an

applicant is entitled to registration, “the Director shall cause the mark to be

published in the Official Gazette of the [PTO]”); id. § 1063(a) (2006) (allowing

                                         -3-
those who believe that they will be damaged by registration to file an opposition

to registration of the mark). Med-Systems commenced an opposition proceeding

against the SINUSENSE mark before the Trademark Trial and Appeal Board in

December 2009, but that proceeding has been stayed pending resolution of this

case.

        Water Pik filed this action against Med-Systems in May 2010. It sought a

declaratory judgment (1) that its use of the SINUSENSE mark did not infringe on

any of Med-Systems’ registered trademarks under § 32 of the Lanham Act, id.

§ 1114 (2005); (2) that the trade dress for its SinuSense-branded products did not

infringe on the trade dress for any of Med-Systems’ SinuCleanse-branded

products under § 43(a) of the Lanham Act, id. § 1125(a) (2012); (3) that its use of

the SINUSENSE mark did not constitute unfair competition against Med-Systems

under § 43(a); (4) that its use of the mark did not constitute dilution of any of

Med-Systems’ trademarks under § 43(c) of the Lanham Act, id. § 1125(c); and (5)

that it had a right to register the SINUSENSE mark and to use it in connection

with its sinus-irrigation line.

        Two months after Water Pik filed its complaint, SinuSense-branded

products began appearing in stores. They included neti pots, squeeze bottles,

electric nasal pulsators, and saline refill packets. Exhibits to Water Pik’s

complaint show the packaging for these products. They feature the word

“waterpik” in large, unitalicized white letters against a blue background, and,

                                          -4-
directly below it in larger letters, the word “SinuSense” in unitalicized blue letters

against a white background. The letter i in “waterpik” is modified to include

                                                                three vertically

                                                                stacked dots instead

                                                                of one:




      Med-Systems raised seven counterclaims: (1) that Water Pik’s use of the

SINUSENSE mark infringed on Med-Systems’ registered trademarks in violation

of § 32; (2) that the packaging for Water Pik’s SinuSense-branded products

constituted trade-dress infringement under § 43(a); (3) that Water Pik’s use of the

SINUSENSE mark constituted unfair competition under § 43(a); (4) that Water

Pik’s activities had diluted Med-Systems’ trademarks under § 43(c); (5) that Med-

Systems was entitled to an injunction against Water Pik’s use of the SINUSENSE

mark under 15 U.S.C. § 1116 (2008); (6) that Water Pik had tortiously interfered

with Med-Systems’ contractual relations with a national retailer by inducing the

retailer to place SinuSense-branded products on its shelves in place of

SinuCleanse-branded products; and (7) that through the same conduct, Water Pik

                                          -5-
had also tortiously interfered with Med-Systems’ existing economic relations with

that retailer. Med-Systems later dismissed the sixth and seventh counterclaims

with prejudice, and the district court awarded summary judgment to Water Pik on

the remaining counterclaims. The court dismissed Water Pik’s claims for

declaratory judgment as moot. See Water Pik, Inc. v. Med-Systems, Inc., 848 F.

Supp. 2d 1262, 1283 (D. Colo. 2012).

      Med-Systems’ only challenges on appeal are to the summary judgment on

its claims of trademark infringement and unfair competition. On those claims the

district court ruled that Med-Systems had not produced adequate evidence that

Water Pik’s use of the SINUSENSE mark was likely to cause confusion among

consumers. See id. at 1270–71. Med-Systems filed a motion to reconsider,

arguing, among other things, that the court had overlooked a report on likelihood

of confusion by one of its experts, Dr. Michael A. Belch. Dr. Belch’s report was

an analysis of a survey that measured consumer confusion arising from the

SINUSENSE mark. After examining the survey and report, the court determined

that they had too many methodological flaws to be of any probative value, so it

did not revise its previous analysis.

      On appeal Med-Systems argues that the district court erred in ruling that no

genuine issue of fact existed regarding likelihood of confusion. It also suggests

that an improper grant of summary judgment would violate its Seventh




                                        -6-
Amendment right to a jury trial; but we need not address that issue because the

summary judgment was proper.

II.   DISCUSSION

      A.     Likelihood of Confusion

      Med-Systems claims that Water Pik’s use of the SINUSENSE mark

constitutes infringement of its registered trademarks as well as unfair

competition, both of which are violations of the Lanham Act. Section 32 of the

Act allows the owner of a registered mark to bring an infringement action against

any person who

      use[s] 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 . . . .

15 U.S.C. § 1114(1)(a) (emphasis added). And § 43(a) of the Act provides:

      Any person who, on or in connection with any goods or 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 . . . is likely to cause
      confusion, or 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 . . . 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.

Id. § 1125(a) (emphasis added). Although Med-Systems does not clarify whether

it is appealing summary judgment on its § 32 counterclaim, its § 43(a)

                                         -7-
counterclaim, or both, the central inquiry is the same: whether the junior user’s

mark is likely to cause confusion with the senior user’s mark. See, e.g., Team

Tires Plus, Ltd. v. Tires Plus, Inc., 394 F.3d 831, 832–33 (10th Cir. 2005) (§ 32

claim); Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959,

966 (10th Cir. 1996) (§ 43(a) claim); see also Jordache Enters., Inc. v. Hogg

Wyld, Ltd., 828 F.2d 1482, 1484 (10th Cir. 1987) (noting that similar tests govern

claims under both provisions).

      Likelihood of confusion is a question of fact, but the court may grant

summary judgment in appropriate circumstances. See Sally Beauty Co., Inc. v.

Beautyco, Inc., 304 F.3d 964, 972 (10th Cir. 2002). In evaluating whether there

is a likelihood of confusion, we examine six nonexhaustive factors: (1) evidence

of actual confusion; (2) the strength of the contesting mark; (3) the degree of

similarity between the competing marks; (4) the intent of the alleged infringer in

adopting the contested mark; (5) the degree of care that consumers are likely to

exercise in purchasing the parties’ products; and (6) the similarity of the parties’

products and the manner in which they market them. See Vail Assocs., Inc. v.

Vend–Tel–Co., Ltd., 516 F.3d 853, 863 (10th Cir. 2008). The importance of any

particular factor in a specific case can depend on a variety of circumstances,

including the force of another factor. For example, if the two marks are not at all

similar, the degree of consumer care is unlikely to make a difference. As we have

said, “These [six] factors are interrelated and no one factor is dispositive.” Sally

                                          -8-
Beauty, 304 F.3d at 972. “At all times . . . the key inquiry is whether the

consumer is likely to be deceived or confused by the similarity of the marks.”

Team Tires, 394 F.3d at 833 (internal quotation marks omitted).

      B.     Standard of Review

      We review a summary judgment de novo, applying the same standard that

the district court should have applied. See id. at 832. “Summary judgment is

appropriate if the pleadings, depositions, other discovery materials, and affidavits

demonstrate the absence of a genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law.” Sally Beauty, 304 F.3d at 971;

see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Sally Beauty,

304 F.3d at 972 (internal quotation marks omitted). The nonmoving party is

entitled to all reasonable inferences from the record; but if the nonmovant bears

the burden of persuasion on a claim at trial, summary judgment may be warranted

if the movant points out a lack of evidence to support an essential element of that

claim and the nonmovant cannot identify specific facts that would create a

genuine issue. See id. at 971–72. As the party alleging infringement under § 32

and unfair competition under § 43(a), Med-Systems bears the burden of proving a

likelihood of confusion at trial. See John Allan Co. v. Craig Allen Co., 540 F.3d

1133, 1138 (10th Cir. 2008) (§ 43(a) unfair-competition claim); Jordache, 828

F.2d at 1484 (§ 32 infringement claim).

                                          -9-
      C.     Application to This Dispute

      Med-Systems contends that summary judgment was inappropriate because

likelihood of confusion was a genuine issue of fact. We apply our six-factor test

to evaluate likelihood of confusion between the SinuCleanse and SinuSense

marks, addressing Med-Systems’ specific arguments challenging the district

court’s evaluation of the factors. 1 As we shall see, only the sixth factor favors

Med-Systems and the factors as a whole strongly favor Water Pik.

             1.    Actual Confusion

      “[A]ctual confusion in the marketplace is often considered the best

evidence of likelihood of confusion.” King of the Mountain Sports, Inc. v.

Chrysler Corp., 185 F.3d 1084, 1092 (10th Cir. 1999) (internal quotation marks

omitted). For one thing, such empirical data can be a reality check on the more

theoretical analysis under the other factors. Med-Systems cites two different

kinds of evidence of actual confusion: survey evidence gathered by Dr. Belch;

and some emails, blog posts, and affidavits. We first address the survey evidence.

                   a.     Survey Evidence

      “Evidence of actual confusion is often introduced through the use of

surveys, although their evidentiary value depends on the methodology and

      1
        We do not consider Med-Systems’ SINUCLEANSE SQUEEZE mark,
because its opening brief does not provide any argument relating to the mark. Cf.
Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d
1045, 1049 n.1 (10th Cir. 2008) (“Arguments inadequately briefed in the opening
brief are waived.”).

                                         -10-
questions asked.” Vail Assocs., 516 F.3d at 864 n.8 (internal quotation marks

omitted). To test consumer confusion, Dr. Belch designed a questionnaire that

respondents completed over the Internet. After first answering a few questions

for demographic identification and to establish their experience with purchasing

healthcare products, respondents were shown the unitalicized typewritten words

“SinuCleanse,” “SinuSense,” and “NeilMed” in varying orders and were asked

(Question 3) what came to mind when they saw those marks. Aplt. App., Vol. 6

at 1434. (NeilMed is a third competitor in the sinus-irrigation market.) They

then viewed packages for SinuCleanse-branded products, SinuSense-branded

products, and NeilMed-branded products in varying orders and were asked to

rank, on a scale of one to seven, how appealing they found the design of each

package. These initial questions were to disguise the goal of the survey while

focusing attention on the packages.

      Next, respondents were shown packaging for saline refill packets that

carried the SinuCleanse, SinuSense, and NeilMed brands. After viewing each

brand’s package in isolation, then all three packages side by side, respondents

were given a sequence of three questions aimed at measuring confusion. The first

asked whether they thought that two or more of the displayed products were made

by the same company. The second asked whether they thought that one or more

of the companies whose brands were displayed had a business relationship with

one of the other companies. And the third asked whether they thought that one or

                                       -11-
more of the companies whose brands were displayed had obtained permission or

approval from one of the other companies. Respondents were presented with the

second question only if they responded no or not sure to the first, and they were

presented with the third question only if they had responded no or not sure to the

second. Respondents who answered yes to any one question were asked to

identify which two or three brands they thought were related and why. The

survey also used this same procedure, with the same questions, to gauge reactions

to neti pots branded as SinuCleanse, SinuSense, and NeilMed. In both cases,

after the three-question sequence all respondents answered a final question in

which they were shown three pairs of typewritten words—“SinuCleanse and

SinuSense,” “NeilMed and SinuCleanse,” and “SinuSense and NeilMed”—and

were asked (Question 10) to rank the similarity between the paired words on a

scale from 1 to 7. Id. at 1446.

      The district court ruled that the results of Dr. Belch’s survey were “devoid

of any probative value and therefore irrelevant,” id. Vol. 8 at 2244 (Order at 22,

Water Pik, Inc. v. Med-Systems, Inc., Civ. No. 10-cr-01221-PAB-CBS (D. Colo.

June 13, 2012)), because it perceived several serious methodological flaws in the

survey: (1) Dr. Belch selected respondents from those whom he regarded as

potential purchasers of sinus remedies in general, not potential purchasers of

sinus-irrigation products in particular (which account for only 1% of sinus-

remedy sales), thus creating an overinclusive survey universe; (2) Dr. Belch,

                                        -12-
based on the opinion of Med-Systems’ CEO Gallo regarding the composition of

the sinus-remedy market, skewed the survey population to ensure that 42% of

respondents were older than 55, but an independent market study indicated that

fewer than 29% of sinus-remedy consumers belonged to that age group; (3)

Questions 3 and 10 did not present the marks as they would appear to a consumer

because both marks were shown in a typewritten format, divorced from

packaging, and without any italics; and the SinuSense mark was unaccompanied

by the distinctive “waterpik” logo that appears on packaging for SinuSense

products; (4) the survey presented images of Water Pik’s products and images of

Med-Systems’ products side by side, thereby failing to recreate the true

conditions of the marketplace; and (5) the questions were leading and suggestive

because they encouraged respondents to entertain the possibility of an affiliation

between SinuCleanse- and SinuSense-branded products when they might not have

considered such a possibility on their own.

      Med-Systems argues that the district court erred in finding flaws and that

far from being methodologically unsound, Dr. Belch’s survey provides strong

evidence that consumer confusion is likely.

      “Before expert testimony can be admitted, Federal Rule of Evidence 702

requires the district court to ‘ensure that any and all scientific testimony or

evidence admitted is not only relevant, but reliable.’” In re Williams Sec.

Litig.—WCG Subclass, 558 F.3d 1130, 1137 (10th Cir. 2009) (quoting Daubert v.

                                         -13-
Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). “We review for an abuse

of discretion the manner in which the district court exercises its Daubert

‘gatekeeping’ role in deciding whether to admit or exclude survey evidence.”

Vail Assocs., 516 F.3d at 864 n.8.

      In our view the district court’s concerns about the survey’s methodology

were reasonable. And we see no error in its deciding that the survey failed to

support a likelihood of confusion.

      First, Questions 3 and 10 presented both marks in a format that did not

accurately reproduce the manner in which consumers ordinarily view them. We

address each mark in turn. The SinuCleanse mark was typewritten without italics.

Med-Systems argues that use of the nonstylized mark was proper because

consumers frequently encounter it in that form. But the record indicates

otherwise. Every photograph of a Med-Systems package conspicuously features

the stylized term “SinuCleanse,” with the first component printed in plain type

and the second component italicized. To be sure, the narrative on some packages

contains a nonstylized mark in small type, and the nonstylized mark appears on

Med-Systems’ website and elsewhere on the Internet; but the nonstylized mark is

generally accompanied by a more prominent stylized mark. These uses of the

nonstylized mark are of minimal consequence. They are likely to escape the

attention of consumers, as they escaped the attention of Med-Systems’ CEO




                                        -14-
Gallo, who testified as follows at his deposition after being shown the stylized

mark (Exhibit 4) and the nonstylized mark (Exhibit 5).

      Q.     And is it correct that the SinuCleanse mark that’s been marked
             as Exhibit 4 is the—is the way you present SinuCleanse on
             your product packaging?
      A.     Has been on everything since 1997. Yeah.
             ....
      Q.     Let me hand you what’s been marked as Exhibit 5. . . .

             Is this another trademark that you have for SinuCleanse?
      A.     Yes.
      Q.     And is the manner in which SinuCleanse is depicted in
             Exhibit 5 ever used with product packaging?
      A.     No.
      Q.     Is it ever used on your website?
      A.     No.
      Q.     Is it ever used with respect to direct mailing or other types of
             marketing activities?
      A.     No.
             ....
      Q.     My point was, is that, as SinuCleanse is depicted in Exhibit 5,
             the end customers aren’t going to encounter that when they go
             to a store to buy a nasal irrigation device?
      A.     No. We always use the style as [stylized?] mark . . . .

Aplt. App., Vol. 2 at 157–58.

      As for the SinuSense mark, it was typewritten without the “waterpik”

logo—with the three dots stacked vertically above the letter i—which appears

prominently and in close proximity to the SinuSense mark on packaging for

SinuSense products. The same logo appears prominently on packaging for other

Water Pik products as well. In other words, the logo functions as a “house

mark”—that is, “a mark used on several different goods or services which


                                        -15-
themselves use a particular ‘product mark.’” 4 J. Thomas McCarthy, McCarthy

on Trademarks and Unfair Competition § 23:43, at 23-218 (4th ed. 2013)

(4 McCarthy). Examples of house marks appended to product marks include

“APPLE MACINTOSH computer, FORD MUSTANG auto and VASELINE

INTENSIVE CARE hand lotion.” Id.

      Marks should be compared “as a whole as they are encountered by

consumers in the marketplace.” King of the Mountain, 185 F.3d at 1090 (internal

quotation marks omitted); cf. 6 J. Thomas McCarthy, McCarthy on Trademarks

and Unfair Competition § 32:163, at 32-357 (6 McCarthy) (“[T]he closer the

survey methods mirror the situation in which the ordinary person would encounter

the trademark, the greater the evidentiary weight of the survey results.”). By

presenting the SinuCleanse mark differently from the way that it actually appears

on packaging, and by failing to include the “waterpik” house mark next to the

SinuSense product mark, Questions 3 and 10 exaggerated the similarities between

the two marks, likely increasing the confusion of the respondents.

      Second, when the survey did ask respondents to react to the marks as they

actually appeared on product packaging, it presented the marks side by side along

with the NeilMed mark. But a side-by-side comparison ordinarily is not the

proper method of determining likelihood of confusion. The marks “must be

compared in light of what occurs in the marketplace, not in the courtroom.” Beer

Nuts, Inc. v. Clover Club Foods Co. (Beer Nuts I), 711 F.2d 934, 941 (10th Cir.

                                       -16-
1983) (internal quotation marks omitted). Thus, in Jordache, 828 F.2d at 1488,

we affirmed the decision by the district court to give minimal weight to a survey

that used a side-by-side comparison because it bore “little resemblance to the

actual workings of the marketplace.” But see Squirtco v. Seven-Up Co., 628 F.2d

1086, 1089 n.4, 1091 (8th Cir. 1980) (using side-by-side comparison). See

generally 6 McCarthy § 32:173.50 (noting that one expert approves of side-by-

side comparisons to compare two weak marks if products are simultaneously or

sequentially accessible in the marketplace). A side-by-side comparison can

emphasize differences in marks that might not be noticed by the actual shopper

(thereby decreasing the respondents’ likelihood of confusion), or it may bring to

mind the senior mark when the respondent would not otherwise have thought of it

(thereby increasing the respondents’ likelihood of confusion). As the district

court noted, Med-Systems cited no evidence that SinuCleanse and SinuSense

were sold side-by-side in stores. Although Med-Systems did point to screenshots

of search results from online shopping websites, where both SinuCleanse products

and SinuSense products are featured, these screenshots do not support its

contention that a side-by-side comparison was the proper survey design. In none

of the screenshots are SinuCleanse, SinuSense, and NeilMed products isolated

and displayed next to one another; rather, they are scattered among a host of other

sinus remedies, which bear names like “NasalCare,” “SinuPulse,” and “SinuAir.”




                                        -17-
Aplt. App., Vol. 6 at 1464, 1467, 1469–70. The district court could properly

distrust the survey’s side-by-side format.

      Third, the district court could reasonably view the survey questions as

improperly leading. Respondents were shown only three products and were asked

whether two or more of the products were made by the same company; whether

two or more of the products’ makers had a business affiliation; and whether one

or more of the makers had received permission or approval from one of the

others. They could answer yes, no, or not sure. “A survey question that begs its

answer by suggesting a link between plaintiff and defendant cannot be a true

indicator of the likelihood of consumer confusion.” Scott Fetzer Co. v. House of

Vacuums, Inc., 381 F.3d 477, 488 (5th Cir. 2004). In Scott Fetzer the leading

question was similar to what was asked in Med-Systems’ survey. Respondents

were shown an ad for the defendant and were asked whether the defendant was

“in any way affiliated with, connected with, associated with or authorized by” the

plaintiff’s company. Id. at 487–88 (internal quotation marks omitted); see also

Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112, 118 (2d Cir.

1984) (“To the best of your knowledge, was the Donkey Kong game made with

the approval or under the authority of the people who produce the King Kong

movies?” (internal quotation marks omitted)); IDV N. Am., Inc. v. S & M Brands,

Inc., 26 F. Supp. 2d 815, 831 (E.D. Va. 1998) (“Do you think there is any

connection between (BAILEYS Irish Cream/BAILEYS liqueur/BAILEYS alcohol,

                                        -18-
if mentioned) and Bailey’s cigarettes?” (internal quotation marks omitted)); see

generally 6 McCarthy §§ 32:172, 32:175; cf. id. § 32:175 at 32-405 (“In the

author’s view, it is not improperly leading to present the respondent with a fair

and accurate representation of the contesting marks and ask in a neutral manner if

the respondent thinks there is or is not some connection, affiliation or sponsorship

relation between the owners of the marks—or that the respondent doesn’t

know. . . . However, it will probably be improperly leading to suggest the desired

response in the form of a yes or no question.”) By suggesting the possibility that

SinuSense might be connected with another brand, and limiting the candidates to

SinuCleanse and NeilMed, the survey questions risked sowing confusion between

SinuSense and SinuCleanse when none would have arisen otherwise. The district

court could reasonably conclude that the question suggested the very answer most

helpful to Med-Systems’ cause rather than eliciting responses as they might occur

spontaneously in the marketplace.

      Moreover, as pointed out by Water Pik’s expert in the district court, Med-

Systems’ survey, even if assumed to be methodologically sound, does not show a

likelihood of confusion. To arrive at this conclusion, we must discuss how

likelihood of confusion is computed from surveys. The key questions in Med-

Systems’ survey were those that asked whether the SinuCleanse and SinuSense

products were made by the same company, whether the companies had a business

relationship, or whether one of the companies had obtained permission or

                                        -19-
approval from the other to make its product. The raw confusion rate was the

percentage of respondents who answered yes to one of these questions. For the

trial in which respondents viewed packaging for saline packets, 203 respondents

participated and 47 answered yes to one of the three questions, yielding a raw

confusion rate of about 23%. For the trial involving packaging for neti pots, 198

participated and 29 answered yes, producing a raw confusion rate of 14.6%.

      Such raw figures are usually unhelpful, however, in predicting likelihood of

confusion, because they can be inflated by “background noise,” or false positives

arising from something other than the particular confusion that is alleged and that

the survey aims to capture. 6 McCarthy § 32:187, at 32-433. “In any survey,

there will always be some interviewees who are bored, hurried or just plain

contrary and whose responses must be filtered out . . . .” Id. (We would add

another cause of false positives—poor survey design that stimulates confusion.)

Surveys can adjust for this background noise by using controls. To isolate

confusion arising specifically from the contested mark, survey designers will

substitute for the contested mark a control mark that shares as many

characteristics with the contested mark as possible, “with the key exception of the

characteristic whose influence is being assessed.” THOIP v. Walt Disney Co.,

690 F. Supp. 2d 218, 240 (S.D.N.Y. 2010) (internal quotation marks omitted);

see, e.g., First Nat’l Bank in Sioux Falls v. First Nat’l Bank S.D., 679 F.3d 763,

770–71 (8th Cir. 2012) (when two marks at issue were “First National Bank South

                                        -20-
Dakota” and “First National Bank in Sioux Falls,” the use of “First Bank & Trust”

as a control was proper (internal quotation marks omitted)); AHP Subsidiary

Holding Co. v. Stuart Hale Co., 1 F.3d 611, 613 (7th Cir. 1993) (using “Mazola”

and “Wesson–Lite” cooking sprays as controls when the contested mark was

“Pan–Lite” and the contesting mark was “PAM”). By discounting for confusion

arising from the control, the survey can measure net confusion, or “the difference

between the raw confusion percent and the control confusion percent.”

6 McCarthy § 32:187, at 32-435; see AHP, 1 F.3d at 613–14 (control confusion of

7% was subtracted from raw confusion of 45%, yielding net rate of 38%).

      Here, the control used in the survey was NeilMed. The net confusion rate

in each trial, then, was the rate of confusion between SinuCleanse and SinuSense,

minus the rate of confusion between SinuCleanse and NeilMed. Stated

differently, the net rate of confusion was the net number of confused respondents

divided by the total number of respondents. This number was insubstantial for

both trials. In the saline-packet trial, 34 of the 203 respondents, or 16.7%,

expressed confusion between SinuCleanse and NeilMed. Subtracting these

respondents from the 47 who were confused between SinuCleanse and SinuSense,

one arrives at a net confusion rate of 13 divided by 203, or less than 6.5%. 2

      2
         Some respondents thought that all three products were affiliated, say
because they were made by the same company. Such responses could be ignored.
If the respondent thought that SinuCleanse and SinuSense were made by the same
company, it would be proper to add 1 to the raw number of confused respondents.
                                                                        (continued...)

                                        -21-
      In the neti-pot trial, 29 of the 198 total respondents, or 14.6%, expressed

confusion between SinuCleanse and SinuSense. But 30 respondents (15.2%)

expressed confusion between SinuCleanse and NeilMed. Therefore, the net

confusion rate for the neti-pot trial was negative 0.5% (1 divided by 198). Net

confusion rates of 6.5% and negative 0.5% do not create a genuine factual issue

of likelihood of confusion. See 1-800 Contacts, Inc. v. Lens.com, Inc., Nos. 11-

4114, 11-4204, 12-4022, 2013 WL 3665627, at **13–15 (10th Cir. July 16, 2013)

(net confusion rates of 7.5% and 7.3% were too low); and because the

methodological shortcomings identified by the district court probably increased

the net confusion rate, the survey is even more harmful to Med-Systems.

      Dr. Belch’s report cited net confusion rates higher than the ones calculated

above, but only by using a nonsensical analysis. Rather than repeating all his

computations, we present only one, which is typical and illustrative. In the

saline-packet trial, 22 of the 203 respondents answered that two or more brands

had a business affiliation; 14 said that the two brands were SinuCleanse and

SinuSense, whereas 6 said that they were SinuCleanse and NeilMed. The proper

analysis would be that the raw confusion rate from this question was 14 over 203,

or roughly 6.9%, and that the net confusion rate was the net number of confused


      2
          (...continued)
But since the respondent also thought that SinuCleanse and NeilMed were made
by the same company, it would then be necessary to subtract 1 in calculating net
confusion.

                                        -22-
respondents (14 minus 6) divided by the total number of respondents (203), or

3.9%.

        Dr. Belch, however, divided the net number of respondents confused

between SinuCleanse and SinuSense (14 minus 6) by the number of respondents

confused between any pair of brands (or by all three)—that is, those who

answered that any two or more of the three brands had a business relationship.

The number of such confused respondents was 22, so he arrived at a net confusion

rate of 8 over 22, or 36%. This approach greatly exaggerates the confusion rate.

The 36% figure does not measure the net percentage of consumers who were

confused between SinuCleanse and SinuSense; as stated above, that would be

3.9%. The absurdity of Dr. Belch’s approach can be shown by an illustration.

Say, 2 respondents out of 203 (or out of 1,000, for that matter) confused

SinuCleanse and SinuSense while 1 respondent confused SinuCleanse and

NeilMed. Dr. Belch’s net confusion rate would then be 33%, the net number of

confused respondents (2 minus 1) divided by the total number of confused

respondents (3). Yet the true raw confusion rate would be less than 1% (2

divided by 203) and the true net confusion rate would be less than 0.5% (1

divided by 203). Dr. Belch’s calculation is irrelevant.

        We also hold that the likelihood of confusion is not shown by the

respondents’ answers to Question 10. Question 10 presented respondents with

three different pairs of marks at once—SinuCleanse (not stylized) and SinuSense;

                                        -23-
SinuCleanse (not stylized) and NeilMed; and SinuSense and NeilMed—and asked

them to rate the similarity of each pair on a scale from 1 (“Not at all similar”) to

7 (“Very similar”). Aplt. App., Vol. 2 at 404. We have already noted the

problem created by not comparing the marks as they actually appear (with

SinuCleanse stylized and SinuSense accompanied by the waterpik house mark).

But there is an even more fundamental problem. Dr. Belch never explained, and

we have no way of knowing, whether any particular score indicates a likelihood

of confusion and why. We may say that siblings look very similar yet never

confuse them. Cf. Beer Nuts I, 711 F.2d at 942 (commenting that the district

court “erroneously equated likelihood of confusion with similarity”); J.B.

Williams Co., Inc. v. Le Conté Cosmetics, Inc., 523 F.2d 187, 192 (9th Cir. 1975)

(“The marks may be similar in appearance . . . yet not likely to cause confusion as

to their source, particularly when all the factors are considered.”). All that can be

drawn from the data is the unsurprising conclusion that people saw SinuCleanse

and SinuSense as more similar than SinuCleanse and NeilMed or SinuSense and

NeilMed. This conclusion is of little assistance in assessing whether confusion

was likely.

      In short, the Med-Systems survey strongly suggests an insignificant

likelihood of confusion.

                    b.     Nonsurvey Evidence




                                         -24-
      In addition to Dr. Belch’s survey, Med-Systems cites four pieces of

evidence that it says show actual confusion: (1) a text message to cofounder

Gallo in February 2011 from a friend and customer who claimed to have seen an

ad for SinuCleanse products on the Weather Channel, where Med-Systems

apparently does not advertise (although there is no evidence that the ad seen by

the friend was for SinuSense); (2) a March 2011 post by a coupon blog that

featured a photograph of a SinuSense-branded squeeze bottle along with the

caption “WaterPik SinuCleanse” 3; (3) a June 2011 post on the online auction site

eBay featuring a photograph of SinuSense-branded saline packets along with the

caption “Sinucleanse 60 Soothing Saline Packs Easy Pour Waterpik”; and (4) a

declaration by a consumer that she was confused between the two brands when

she purchased a neti pot at Walgreens.

      We have consistently recognized, however, that isolated, anecdotal

instances of actual confusion may be de minimis and may be disregarded in the

confusion analysis. What is required for a claim of trademark infringement under

the Lanham Act is a likelihood of confusion, not merely the possibility of


      3
        The district court did not consider the blog post to be evidence of actual
confusion, apparently because the author of the post later stated that her
erroneous caption “was a typographical error and that she was not confused with
regard to SinuSense TM and Sinu Cleanse®.” Water Pik, 848 F. Supp. 2d at 1274
n.7. Even if we take her word and assume that she was not consciously confused,
the blog post could still support a reasonable inference that her mind associated
the two brands on some level. We will therefore assume that her post was a
specimen of actual confusion.

                                         -25-
confusion. See 4 McCarthy § 23:3. In Universal Money Centers, Inc. v. AT & T

Co., 22 F.3d 1527, 1535 (10th Cir. 1994), for example, the plaintiff submitted an

affidavit by a customer that he had been confused by the defendant’s mark, and

two affidavits by the plaintiff’s employees that they had received a number of

accounts of similar confusion from consumers. We ruled that this evidence,

together with survey data reflecting a 2.6% rate of actual confusion, was de

minimis. See id. at 1534–35. And in King of the Mountain we ruled that evidence

of seven episodes of actual confusion was de minimis. See 185 F.3d at 1092–93.

      The district court characterized Med-Systems’ nonsurvey evidence as de

minimis, see Water Pik, 848 F. Supp. 2d at 1274, and we agree. As the D.C.

Circuit observed in a trademark-infringement case predating the Lanham Act,

“Probable confusion cannot be shown by pointing out that at some place, at some

time, someone made a false identification.” McGraw–Hill Publ’g Co. v. Am.

Aviation Assocs., 117 F.2d 293, 295 (D.C. Cir. 1940) (Vinson, J.). The four

instances cited by Med-Systems are isolated episodes with minimal probative

value on whether reasonable consumers as a whole are actually confused by

Water Pik’s trademark.




                                       -26-
       Med-Systems has wholly failed to show sufficient actual confusion to

support a claim of likelihood of confusion. 4 This factor strongly favors Water

Pik.

             2.    Strength of Med-Systems’ Mark

       Likelihood of confusion depends partly on the senior mark’s strength—that

is, its “capacity to indicate the source of the goods or services with which it is

used.” Restatement (Third) of Unfair Competition § 21 cmt. i (1995). Strength

has two aspects: conceptual strength, or the mark’s place on the spectrum of

distinctiveness, and commercial strength, or its level of recognition in the

marketplace. See King of the Mountain, 185 F.3d at 1093.

       The strength of the contesting mark can be important in several contexts.

For example, if the mark is particularly strong, use of that mark by another can

give rise to likelihood of confusion even if the use occurs in connection with a

totally distinct product line. The Fourth Circuit has offered a helpful illustration:

“If the trade mark is a coined word, such as Kodak, it is more probable that all

goods on which a similar designation is used will be regarded as emanating from

the same source than when the trade-mark is one in common use on the variety of

goods, such as ‘Gold Seal’ or ‘Excelsior.’” Arrow Distilleries, Inc. v. Globe

       4
        Water Pik argues that a consumer survey of its own, conducted by
Dr. Gary Ford, confirms the absence of actual confusion. Because Med-Systems’
survey and nonsurvey evidence is insufficient to show actual confusion even
without considering Water Pik’s expert evidence, we need not address Dr. Ford’s
survey.

                                         -27-
Brewing Co., 117 F.2d 347, 349 (4th Cir. 1941) (internal quotation marks

omitted); see id. at 350 (“English courts have prevented one from putting forth

Kodak bicycles, at the suit of the originator of the name for a totally different

article.” (internal quotation marks omitted)). On the other hand, if a mark is

weak, use of a similar mark even on similar goods is unlikely to cause confusion

if minor differences distinguish one party’s mark from another. See First Sav.

Bank, 101 F.3d at 655 (“When the primary term [in a mark] is weakly protected to

begin with, minor alterations may effectively negate any confusing similarity

between the two marks.”). The latter principle is what applies here. As we shall

see, the SinuCleanse mark is a weak one. The differences between it and Water

Pik’s mark therefore make confusion highly unlikely.

      We begin by analyzing the conceptual strength of the SinuCleanse mark.

                    a.    Conceptual Strength

      In measuring conceptual strength, the spectrum of distinctiveness ranges

along the following five categories of marks (from least to most distinctive): (1)

generic, meaning that the mark identifies only a general class of goods to which a

specific product may belong; (2) descriptive, meaning that it reflects one or more

of the product’s characteristics or qualities; (3) suggestive, meaning that it

suggests or evokes, rather than describes, the nature of the product, requiring “the

consumer to use imagination and perception to determine the product’s nature”;

(4) arbitrary, meaning that the mark is a word or symbol already in common use

                                         -28-
that does not have any apparent relation to the product (as in Apple computers);

and (5) fanciful, meaning that the mark is a novel word or design that has been

coined for the sole purpose of serving as a trademark (as in Kodak or Exxon).

Sally Beauty, 304 F.3d at 975–76. Generic marks are not protected as trademarks,

and a descriptive mark can receive trademark protection “only when it has

acquired a secondary meaning by becoming distinctive of the [owner’s] goods in

commerce.” Id. at 976 (internal quotation marks omitted). Unlike descriptive

marks, “[s]uggestive, fanciful, and arbitrary marks are considered inherently

distinctive” and need not acquire secondary meaning to warrant protection as

trademarks. Id.

      The mark “SinuCleanse” is a weak one. For two reasons. First, the “Sinu”

component of SinuCleanse is a widely used prefix that is essentially generic. See

First Savings Bank, 101 F.3d at 655 (noting that the word BANK “is clearly

generic”). Although Med-Systems disputes Water Pik’s assertion that the prefix

“Sinu” is commonly used by third parties, Water Pik produced scores of third-

party trademark registrations in which sinu or sinus appeared, including several

sinus-irrigation products. Med-Systems does not challenge their existence or

authenticity. Further, Med-Systems CEO Gallo answered yes at his deposition to

the question, “[A]s the marketplace exists today, there are a number of companies

that use the prefix ‘Sinu’ to describe some type of product dealing with your

sinuses?” Aplt. App., Vol. 2 at 159–60. This extensive third-party use of a

                                        -29-
component of a disputed term undermines the strength of the term as a whole.

See First Savings, 101 F.3d at 655 (widespread third-party use of “FIRST BANK”

and variations made it a weak term, undermining the strength of the mark “First

Bank System”). In particular, “third-party registrations are relevant to prove that

some segment of the composite marks which both contesting parties use has a

normally understood and well-recognized descriptive or suggestive meaning,

leading to the conclusion that that segment is relatively weak.” Id. at 654

(internal quotation marks omitted); see 2 J. Thomas McCarthy, McCarthy on

Trademarks and Unfair Competition § 11:90 (4th ed. 2013) (2 McCarthy) .

      More importantly, SinuCleanse is a weak mark because it is merely

descriptive, rather than suggestive (as Med-Systems contends). Although “[t]he

distinction between descriptive and suggestive marks is difficult” and “often

based on intuitive reactions rather than analytical reasoning,” we have endorsed a

helpful test for distinguishing between the two categories: “suggestive terms are

those which require the buyer to use thought, imagination, or perception to

connect the mark with the goods,” whereas “[d]escriptive terms are those which

directly convey to the buyer the ingredients, qualities, or characteristics of the

product.” Educ. Dev. Corp. v. Econ. Co., 562 F.2d 26, 29 (10th Cir. 1977)

(emphasis added). “SinuCleanse” falls on the side of descriptiveness. It is a term

previously unknown in the English language, but it is plainly a composite of the

common words “sinus” and “cleanse,” which, when fused together,

                                         -30-
straightforwardly communicate the nature and purpose of Med-Systems’ products:

they cleanse the sinuses. Indeed, Med-Systems’ cofounder Dr. Heatley testified

that the founders “wanted a name that described what it was” and that

SinuCleanse “described better [than a previously selected name] the cleaning or

cleansing process of putting a solution through the nose to clear your sinuses

out.” Aplt. App., Vol. 2 at 117. The ordinary consumer has little need for

imagination to reach this conclusion.

      True, the term “SinuCleanse” by itself may not tell consumers every detail

of the associated products—for example, that a neti pot is used to pass saline

solution through one’s nose. But to be descriptive, a mark “need not directly

convey all of a product’s characteristics, uses, or functions”; rather, it “need only

impart directly a crucial, important aspect of the product.” Educ. Dev. Corp.,

562 F.2d at 29 (emphasis added). In Educational Development Corp. the senior

user had adopted the mark “‘Continuous Progress’” for its educational product, “a

rectangular box holding various cards, pamphlets, and cassette tapes,” or what

was “known in the educational publishing industry as a ‘laboratory.’” Id. at 28.

We said that “Continuous Progress” was descriptive because (1) the term had

been used among educators for decades to describe a concept of teaching that

“allows a student to commence a program of study at a level best suited to his

knowledge of the subject and to progress at a rate suited to his individual

capability,” id. at 27, and (2) the term therefore “directly conveyed to educators

                                         -31-
the most important characteristic of [the] product,” id. at 29, even though it did

not, by itself, “indicate the format, laboratory nature, or other features of the

product,” id. Similarly, in Bardahl Oil Co. v. Atomic Oil. Co. of Okla., Inc., 351

F.2d 148, 150 (10th Cir. 1965), we said that it was “perfectly clear to us that the

word ‘Savmotor,’” when used in connection with motor-oil concentrates and

additives, was “descriptive of the qualities and the functions of the products.”

      “SinuCleanse” is at least as descriptive as “Continuous Progress” and

“Savmotor.” It clearly conveys the sinus-cleansing function of Med-Systems’

products, their most salient property. That it does not fully explain how the

products work does not prevent it from being a descriptive mark. We note that

Med-Systems produced no evidence that its mark was suggestive rather than

descriptive. We conclude that the term “SinuCleanse” is descriptive and thus has

little conceptual strength.

                    b.     Commercial Strength

      Commercial strength is “the marketplace recognition value of the mark.”

King of the Mountain, 185 F.3d at 1093 (internal quotation marks omitted).

Evidence of a mark’s commercial strength can make up for conceptual weakness

because a conceptually weak mark may become strong by virtue of acquired

consumer awareness. “For example, marks such as AMERICAN airlines,

PAYLESS shoe stores, FORD autos and KENTUCKY FRIED CHICKEN fast-

food outlets would, at birth, have been characterized as inherently ‘weak’ terms.

                                          -32-
But they have all become famous and well recognized by the consuming public.”

2 McCarthy § 11:83, at 11-232. By the same token, a mark with conceptual

strength may ultimately be weak if its commercial strength is negligible. See

George & Co. LLC v. Imagination Entm’t Ltd., 575 F.3d 383, 395–96 (4th Cir.

2009) (assuming that the mark “LCR” was suggestive but ruling that it was weak

because the record lacked adequate evidence that consumers associated it with

plaintiff).

       Commercial strength is a concept analogous to secondary meaning.

Secondary meaning refers to the level of distinctiveness that a descriptive mark

must attain in the minds of consumers before it is eligible for trademark

protection. See Donchez v. Coors Brewing Co., 392 F.3d 1211, 1216 (10th Cir.

2004). “To acquire secondary meaning, a descriptive mark must have been used

so long and so exclusively by one producer with reference to his goods or articles

that, in the trade and to that branch of the purchasing public, the mark has come

to mean that the article is his product.” J.M. Huber Corp. v. Lowery Wellheads,

Inc., 778 F.2d 1467, 1470 (10th Cir. 1985) (brackets and internal quotation marks

omitted). The difference between commercial strength and secondary meaning is

that the former is a range, while the latter is a threshold: a mark may enjoy

anything from a high degree of commercial strength to a low degree, but either it

has secondary meaning or it does not. See generally 2 McCarthy § 11:82.

Nevertheless, “the same evidentiary findings” are generally probative of both;

                                        -33-
“[t]he stronger the evidence of secondary meaning, the stronger the mark, and the

more likely is confusion.” 5 Vail Assocs., 516 F.3d at 866 (internal quotation

marks omitted); see George & Co., 575 F.3d at 395 (“The second step [in the

strength analysis] considers the mark’s commercial strength, a concept similar to

the ‘secondary meaning’ inquiry considered in evaluating a mark’s validity.”);

Herman Miller, Inc. v. Palazzetti Imports & Exports, Inc., 270 F.3d 298, 316 n.8

(6th Cir. 2001) (“When determining the commercial or marketplace strength of a

mark, the courts look to the same kind of evidence of real world recognition of

the mark as is used to decide the presence or absence of secondary meaning to

determine whether a non-inherently distinctive designation is or is not a valid

mark.” (internal quotation marks omitted)).

      The factors we have identified as helpful in evaluating secondary meaning

are “direct evidence, such as consumer surveys or testimony from consumers,”

and “circumstantial evidence regarding: (1) the length and manner of [the

mark’s] use, (2) the nature and extent of advertising and promotion of the mark

and (3) the efforts made in the direction of promoting a conscious connection, in



      5
        Perhaps in part because secondary meaning and commercial strength can
be proved with similar evidence, the parties debate whether the SinuCleanse mark
has secondary meaning. But Water Pik does not dispute that the mark is
incontestable, so secondary meaning per se has no relevance to this appeal. See
Beer Nuts, Inc. v. Clover Club Foods Co. (Beer Nuts II), 805 F.2d 920, 924 (10th
Cir. 1986) (“An incontestable mark cannot be challenged as lacking secondary
meaning . . . .” (internal quotation marks omitted)).

                                        -34-
the public’s mind, between the name or mark and a particular product or venture.”

Donchez, 392 F.3d at 1218 (internal quotation marks omitted).

      The evidence in district court did not indicate commercial strength. Med-

Systems produced evidence that it has sold products under the SinuCleanse name

since 1997 but it has wholly failed to show the nature and extent of its advertising

and promotion of the mark or efforts to promote a conscious connection in the

public’s mind between its mark and its products. Evidence that its products had

millions of users and that its products were sold through well-known retailers

does not tell us whether the sales were stimulated by the mark. That its products

were shown on the Oprah Winfrey Show on at least one occasion is not enough to

establish that consumers thereafter connected the mark and the product. Even

CEO Gallo’s testimony that Med-Systems had set its advertising budget at 30% of

sales since 1997 does not tell us how much was spent on advertising, and even if

that figure had been established, “evidence of a mark’s promotion [although]

relevant to prove the strength of a mark, standing alone without a context . . . may

not be sufficient to prove that a mark is very strong.” Vail Assocs., 516 F.3d at

867 (internal quotation marks omitted); see Bose Corp. v. QSC Audio Products,

Inc., 293 F.3d 1367, 1375 (Fed. Cir. 2002) (“Raw numbers of product sales and

advertising expenses may have sufficed in the past to prove fame of a mark, but

raw numbers alone in today’s world may be misleading. . . . Consequently, some

context in which to place raw statistics is reasonable.”). We have no evidence of

                                        -35-
the amount of funds and effort expended by Med-Systems to acquire consumer

recognition, the nature of any such advertising, or the effect of its actions. 6

Indeed, Dr. Heatley conceded that “the average person on the street” would not

“know what SinuCleanse is.” Aplt. App., Vol. 2 at 131. And Med-Systems’

marketing consultant had no data on whether the average consumer was aware of

the brand. A jury could only guess whether SinuCleanse enjoys substantial

consumer recognition. The commercial-strength component, like the conceptual-

strength component, favors Water Pik.

             3.     Similarity of the Marks

      Given the weakness of the SinuCleanse mark, the likelihood of confusion is

small unless the challenged mark is very similar. See First Sav. Bank, 101 F.3d at

655. The requisite similarity is missing here.

      “We test the degree of similarity between marks on three levels: sight,

sound, and meaning.” King of the Mountain, 185 F.3d at 1090. In conducting the

comparison, we do not independently examine each syllable of the marks but

consider “the marks as a whole as they are encountered by consumers in the

marketplace.” Id. (internal quotation marks omitted). This rule “is based on a

      6
        Med-Systems’ opening brief refers to documents in the record that are not
authenticated and therefore cannot be considered on a summary-judgment motion.
See Hansen v. PT Bank Negara Indonesia (Persero), 706 F.3d 1244, 1249–50
(10th Cir. 2013) (phone conversations not authenticated); Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). Although Water Pik pointed out
this shortcoming in its brief, Med-Systems’ reply brief did not try to defend its
use of the documents.

                                          -36-
common sense observation of customer behavior: the typical shopper does not

retain all of the individual details of a composite mark in his or her mind, but

retains only an overall, general impression created by the composite as a whole.”

4 McCarthy § 23:41, at 23-213. Thus, in Universal Money Centers, 22 F.3d at

1531, in which both marks used the term “UNIVERSAL,” we rejected the

argument that because the additional words “MONEY CARD,” “MONEY

CENTER,” and “MONEY” on the plaintiff’s cards had been disclaimed by the

PTO as descriptive, they should be omitted from the comparison. Likewise, in

Sabinsa Corp. v. Creative Compounds, LLC, 609 F.3d 175, 181 (3d Cir. 2010),

where the issue was whether the defendant’s use of the mark “Forsthin” in

connection with a weight-loss product was likely to create confusion with the

plaintiff’s “ForsLean” mark, the Third Circuit held that the district court had

erred in basing its comparison on only the components “thin” and “lean” rather

than the marks as a whole. Id. at 184 (internal quotation marks omitted). We

therefore compare the full words “SinuCleanse” and “SinuSense,” not just the

components “Cleanse” and “Sense.”

      Comparing “SinuCleanse” and “SinuSense” in appearance, we grant that

the two marks have several visual similarities. Both appear in a serif font; both

begin with “Sinu” in unitalicized type; both feature a capital letter after this term;

and both end in “nse.” But the italicization of “Cleanse” in Med-Systems’ mark

is a dramatic distinction, as Water Pik does not italicize “Sense” in its mark. As

                                         -37-
for the “sound” factor, both marks feature “Sinu,” and in both marks the second

component contains a short “e” sound. But in “SinuCleanse” the short “e” occurs

between a hard “kl” sound and a “z” sound, whereas in “SinuSense” it comes

between two “s” sounds. These differences are significant to the ear.

      With respect to “meaning,” the marks are less similar still. “SinuCleanse”

conveys an accurate impression of what a sinus-irrigation product actually

does—namely, cleanses the sinuses. By contrast, “SinuSense” is vague: whether

the word “Sense” functions as a transitive verb, as in “sensing the sinuses,” or as

a noun, as in “good sense for the sinuses,” it hardly offers a descriptive account

of what the product does or how it works, instead leaving such matters to the

consumer’s imagination.

      Overall, there is more than enough distinction between the two marks to

prevent any likelihood of confusion.

      Med-Systems argues that the report of one of its experts, Dr. David Yerkes,

should change our analysis. Dr. Yerkes is a professor of English whose report

explains, at great length and with reference to numerous authorities on linguistics

and psychology, why the marks in this case are similar in sight, sound, and

meaning. Although we do not doubt Dr. Yerkes’s credentials as a scholar, the

report covers a matter on which the trier of fact does not need expert advice. Cf.

Fed. R. Evid. 702(a) (permitting expert testimony if “the expert’s scientific,

technical, or other specialized knowledge will help the trier of fact to understand

                                        -38-
the evidence or to determine a fact in issue” (emphasis added)). In

Chesebrough–Pond’s, Inc. v. Faberge, Inc., 666 F.2d 393, 397–98 (9th Cir.

1982), the Ninth Circuit upheld a summary judgment on the issue of likelihood of

confusion even though the plaintiff’s expert, an associate professor of English,

had opined that the words “‘Match’” and “‘Macho’” were similar in sight, sound,

and meaning. The court said that “[t]he similarity or dissimilarity of these two

words is a matter easily evaluated by laymen within the realm of their common

knowledge and experience”; that “[i]t is highly doubtful that expert testimony on

the subject, of the type presented by the [expert’s] affidavit, would be of any real

assistance to the trier of fact”; and that it would have been “well within the

discretion of the trial judge to exclude” this evidence under Rule 702. Id. at 398.

Even though the district court apparently had not excluded the report, the Ninth

Circuit nevertheless ruled that because “the issue of fact concerned matters of

common knowledge and experience,” the court was free to draw its own

conclusions on similarity and to grant summary judgment even though its opinion

differed from that of the expert. Id. A leading treatise agrees with the Ninth

Circuit’s approach. See 4 McCarthy § 23:2.75, at 23-23 (“It is proper for a judge

to give little weight to expert testimony on an obvious question, such as an

analysis of how the appearance and pronunciation of the conflicting marks differ.

Such expert evidence cannot prevent a summary judgment to the contrary of the

expert’s view.”). We also agree.

                                         -39-
      Moreover, another consideration strongly supports a determination that the

marks here are not similar. As we have explained, and as the district court noted

in criticizing Questions 3 and 10 of Dr. Belch’s survey, the SinuSense mark does

not appear in isolation when used in commerce. Rather, it is routinely

accompanied by the “waterpik” house mark. “Conflicting marks must be

compared in their entirety, including any ‘house mark’ which one party may

append to its mark.” Id. § 23:43, at 23-217 to 218. Thus, in Universal Money

Centers we analyzed whether the defendant’s “‘AT &T Universal Card’” was

similar in sight, sound, and meaning to the plaintiff’s “UNIVERSAL MONEY,”

“UNIVERSAL MONEY CARD,” and “UNIVERSAL MONEY CENTER”

trademarks. 22 F.3d at 1531. Emphasizing that “each mark is to be considered as

a whole,” we noted “the distinctive AT & T house mark prominently displayed on

the front of” the defendant’s card. Id. The presence of this house mark figured

heavily in our ultimate ruling that “the differences between the marks greatly

outweigh[ed] any similarities.” Id. Just as the presence of the house mark in

Universal Money Centers helped persuade us that the defendant’s mark was not

similar to the plaintiff’s, the presence of the “waterpik” house mark confirms our

view that the similarity factor weighs in Water Pik’s favor.

             4.    Water Pik’s Intent

      The district court ruled that Water Pik’s intent favored Med-Systems

because Water Pik knew of the SinuCleanse mark before adopting the brand name

                                        -40-
“SinuSense,” and it developed its SinuSense brand after unsuccessfully trying to

acquire Med-Systems’ line of sinus-irrigation products. See Water Pik, 848 F.

Supp. 2d at 1273. The court noted in particular an email sent in 2008 by Michael

Wakeman, vice president of marketing for Water Pik, which said: “[R]egarding

squeeze bottle designs, let’s pursue both a ‘hybrid’ of the NeilMed/SinuCleanse

designs and a ‘gooseneck’ angular nozzle design (note the suggested

improvements for each in the attached report).” Aplt. App., Vol. 3 at 775.

      Water Pik argues that the district court erred in its analysis of this factor

because it mistakenly focused on whether Water Pik intended to copy Med-

Systems’ products, not whether it intended to deceive consumers about the source

of those products by copying Med-Systems’ trademarks. Water Pik contends that

Med-Systems has cited no evidence of this latter intent.

      We agree with Water Pik’s description of the intent that should be the

central concern of this factor. When we have said that evidence of intent to copy

may justify an inference of likelihood of confusion, we have been referring to

copying a particular mark, not copying a competitor’s product. See, e.g., Utah

Lighthouse Ministry, 527 F.3d at 1055 (“Evidence that the alleged infringer chose

a mark with the intent to copy, rather than randomly or by accident, typically

supports an inference of likelihood of confusion.” (emphasis added)); Sally

Beauty, 304 F.3d at 973 (“Proof that a defendant chose a mark with the intent of

copying the plaintiff’s mark may, standing alone, justify an inference of

                                         -41-
likelihood of confusion.” (emphasis added)). And more specifically, the intent in

copying the mark should be “the intent to derive benefit from the reputation or

goodwill of plaintiff.” Id.; see Universal Money Centers, 22 F.3d at 1532

(stressing that the record contained “absolutely no facts to support an inference

that AT &T adopted the word ‘Universal’ with the intent to derive benefit from

[the plaintiff’s] marks”).

      This focus on an intent to cause confusion by adopting a similar mark

reflects the language of the Lanham Act. The Act speaks in terms of whether the

use of a mark is likely to confuse consumers, not necessarily whether the design

of a product is likely to do so. 7 Section 32 proscribes the “use in commerce” of

“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)(a) (emphasis added). Likewise, § 43(a) imposes liability on any person

who “uses in commerce any word, term, name, symbol, device, or any

combination thereof,” that “is likely to cause confusion, or to cause mistake, or to

deceive” as to affiliation, connection, origin, sponsorship, or approval of the

person’s product. Id. § 1125(a). Such language reflects an interest in preventing

competitors from using deceptive marks to mislead consumers about the source of

      7
        We recognize that in some circumstances a product’s design may be
protected as trade dress, and in such cases the product design will essentially be
the mark. See Hartford House, Ltd. v. Hallmark Cards, Inc., 846 F.2d 1268, 1271
(10th Cir. 1988). Although Med-Systems did allege trade-dress infringement in
this case, it does not argue that claim on appeal.

                                        -42-
their goods or services. The relevance of intent is that one can infer a likelihood

of confusion from a defendant’s selection of a mark with the intent to cause

confusion.

      Our fellow circuits have made the same point. For example, in Streetwise

Maps, Inc. v. VanDam, Inc., 159 F.3d 739, 741–42 (2d Cir. 1998), the plaintiff

appealed the rejection at a bench trial of its claim that its “Streetwise” trademark,

used in connection with foldable, laminated street maps, was infringed by the

defendant’s use of “StreetSmart” in connection with similar maps. The district

court found, among other things, that the defendant had not adopted its mark in

bad faith; it explained that the defendant had “probably copied the size and

concept of [the] Streetwise[] map, but not in an effort to mislead consumers into

believing that they were buying” the plaintiff’s product. Id. at 745. The Second

Circuit agreed with this reasoning, noting: “The intent to compete by imitating

the successful features of another’s product is vastly different from the intent to

deceive purchasers as to the source of the product.” Id.

      In A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198,

206 (3d Cir. 2000), the district court found after a bench trial that the defendant’s

use of “Miracle Bra” in connection with swimwear was not likely to cause

confusion with the plaintiff’s “Miraclesuit” mark, also used for swimwear.

Addressing the district court’s finding that the defendant had not adopted its mark

with the intent to confuse consumers, the Third Circuit explained:

                                         -43-
      [A] defendant’s mere intent to copy, without more, is not sufficiently
      probative of the defendant’s success in causing confusion to weigh
      such a finding in the plaintiff’s favor; rather, defendant’s intent will
      indicate a likelihood of confusion only if an intent to confuse
      consumers is demonstrated via purposeful manipulation of the junior
      mark to resemble the senior’s.

Id. at 225–26 (emphasis added). The appeals court held that the district court’s

finding on this factor was not clear error because the record indicated that the

defendant had “brought the mark into swimwear because of its success in

lingerie,” not “in an effort to ride on [the plaintiff’s] good name.” Id. at 226.

      And in Sensient Technologies Corp. v. SensoryEffects Flavor Co., 613 F.3d

754, 758–60 (8th Cir. 2010), the Eighth Circuit, affirming a summary judgment

that the defendant’s “SensoryEffects” mark was not likely to cause confusion with

the plaintiff’s “Sensient Flavors” mark, agreed with the district court that even if

the defendant had selected its mark with advance knowledge of the plaintiff’s

mark, such knowledge alone did not compel the conclusion that the defendant

possessed the intent relevant to the likelihood-of-confusion analysis. See id. at

766–68. Instead, the appeals court emphasized that “knowledge of another’s

product and an intent to compete does not correspond with an intent to mislead.”

Id. at 767.

      Med-Systems has failed to establish the requisite intent by Water Pik.

Water Pik points to evidence that the process of choosing the SinuSense name

was innocuous. Michael Wakeman, vice president of marketing for Water Pik,


                                         -44-
swore in an affidavit that Water Pik had “utilized the Sterling Rice Group and

Blue Sky Strategies, two outside vendors, to assist it in creating, testing (through

consumer focus groups and on-line surveys) and developing the

SinuSense TM brand.” Aplt. App., Vol. 2 at 334. He testified in a deposition that

the name “SinuSense” was first proposed by Steve Costello of Blue Sky

Strategies and that it was one of multiple names vetted by Sterling-Rice. In an

October 2009 email to Wakeman, Chris Lohmann of Sterling-Rice stated: “[Two

colleagues] and I just met to review the names. We all feel strongly that

SinuSense is by far the best option.” Id., Vol. 3 at 720. One of Wakeman’s

emails earlier in the same email chain suggested that Wakeman actually wished to

avoid using any terminology too similar to an existing mark: he explained that

although “technically we could use Sinus Rinse/SinusRinse, we do not want to as

NeilMed uses it prominently on their package.” Id. at 721. Moreover, Water Pik

added the Water Pik housemark prominently to all SinuSense packaging,

suggesting an effort to avoid confusion rather than create it. This evidence

supports Water Pik’s contention that the SinuSense name arose not from an intent

to confuse consumers by copying SinuCleanse but from “a thorough process . . .

to create a trademark.” Aplee. Br. at 35.

      Med-Systems’ evidence does not contradict Water Pik’s. Much of it

suggests only that Water Pik intended to manufacture products that were similar

to the SinuCleanse line and to sell them to similar consumers. For example,

                                         -45-
Water Pik apparently targeted most of the same distributors and retailers as Med-

Systems; manufactured the same types of sinus-irrigation items and sold saline

packets in the same denomination as Med-Systems; and designed its squeeze

bottle to resemble a hybrid of Med-Systems’ and NeilMed’s. But none of this

evidence relates to the SinuSense brand name; it would not allow a reasonable

juror to infer that Water Pik intended to confuse consumers through its adoption

and use of that brand name.

      And Med-Systems reads too much into an email that Wakeman received in

May 2009 from an executive assistant to Water Pik’s CEO. The executive

assistant wrote that although she liked the name “SinuSense,” she was “concerned

that people may confuse it with SinuCleanse.” Aplt. App., Vol. 3 at 704. There

is no evidence, however, that the Water Pik decisionmakers decided that there

would be such confusion, or that they considered the confusion to be helpful

rather than harmful. 8

      Given the weakness of the evidence of an improper intent, this factor is

neutral.

             5.     Degree of Care Likely to Be Exercised by Purchasers

      8
        Med-Systems suggests in its reply brief that Water Pik’s wrongful intent
with respect to its mark can be inferred from its copying the trade dress on
SinuCleanse packaging. (We note that it has not pursued on appeal its claim of
trade-dress infringement.) But we will not address this argument because it was
not raised in Med-Systems’ opening brief, thereby depriving Water Pik of an
opportunity to respond. See King of the Mountain, 185 F.3d at 1090 n.2
(argument waived when raised for the first time in appellant’s reply brief).

                                       -46-
      If consumers are likely to exercise a high degree of care in deciding whose

product to buy, the likelihood of confusion is reduced. See Heartsprings, Inc. v.

Heartspring, Inc., 143 F.3d 550, 557 (10th Cir. 1998). The district court ruled

that this factor favored Water Pik because Med-Systems did not dispute Water

Pik’s contention that consumers are likely to be more discriminating than usual

when they purchase healthcare products. See Water Pik, 848 F. Supp. 2d at

1276–77. Although Med-Systems’ opening brief on appeal contains passing

remarks that consumers may not exercise much care when shopping for sinus-

irrigation products, these remarks are confined to the statement of facts, and Med-

Systems does not challenge the court’s ruling until its reply brief. “Arguments

inadequately briefed in the opening brief are waived.” Utah Lighthouse Ministry,

527 F.3d at 1049 n.1. We will not revisit the district court’s ruling on this factor.

The high degree of care that consumers are likely to exercise favors Water Pik.

             6.     Similarity of Products and Manner of Marketing

      The evidence in the district court established that Water Pik’s sinus-

irrigation products are very similar to Med-Systems’ and are marketed through

nearly identical channels. This factor favors Med-Systems.

             7.     Overall Likelihood of Confusion

      Our analysis has shown that only the last factor—similarity of products and

marketing—favors Med-Systems. The evidence of actual confusion strongly

favors Water Pik. And the weakness of the SinuCleanse mark, combined with the

                                         -47-
notable respects in which the SinuSense mark (particularly when considered with

the Water Pik house mark) differs from that mark, suggests that the absence of

evidence of actual confusion is no accident. Med-Systems has failed to raise a

genuine factual issue regarding likelihood of confusion. The district court

properly awarded summary judgment to Water Pik.

III.   CONCLUSION

       We AFFIRM the district court’s grant of summary judgment to Water Pik.

We GRANT the stipulated motion to supplement Water Pik’s supplemental

appendix.




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