
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1206                   THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND                         AEROSPACE WORKERS, AFL-CIO, ET AL.,                               Plaintiffs, Appellants,                                          v.                        WINSHIP GREEN NURSING CENTER, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                        Torres* and Saris,** District Judges.                                             _______________                              _________________________               Mark  Schneider,  with whom  John  M.  West and  Bredhoff  &               _______________              ______________      ___________          Kaiser, P.L.L.C. were on brief, for appellants.          ________________               Richard L. O'Meara, with whom Charles P. Piacentini, Jr. and               __________________            __________________________          Murray, Plumb & Murray were on brief, for appellees.          ______________________                              _________________________                                  December 30, 1996                              _________________________          ______________          *Of the District of Rhode Island, sitting by designation.          **Of the District of Massachusetts, sitting by designation.                    SELYA,  Circuit Judge.    In this  eccentric case,  the                    SELYA,  Circuit Judge.                            _____________          International Association  of  Machinists and  Aerospace  Workers          (IAM or Union) charged an employer, Winship Green  Nursing Center          (Winship), with violating  the Lanham Act, 15 U.S.C.    1051-1127          (1994),  through  its  unauthorized  use  of  a service  mark  on          propaganda disseminated during a union organizing campaign.1  The          district court granted Winship's  motion for brevis  disposition,                                                       ______          reasoning that  the Union's  claim failed to  satisfy the  Lanham          Act's jurisdictional  requirements because  (1) the  parties were          not  competing for  the  sale  of  commercial services,  and  (2)          Winship's  admittedly  unauthorized  use   of  the  mark  was  in          connection with  services offered  by the markholder  rather than          services offered by  the infringer.   See International Ass'n  of                                                ___ _______________________          Machinists  v. Winship Green Nursing Ctr., 914 F. Supp. 651, 655-          __________     __________________________          56 (D. Me.  1996).  The  Union appeals.   We affirm, albeit  on a          different ground.          I.  BACKGROUND          I.  BACKGROUND                    We present the basic facts in the light most flattering          to  the party vanquished by  summary judgment.   All the relevant          events occurred in 1994, and all dates refer to that year.                                          A                                          A                    In May  the Union  mounted a  campaign to organize  the                                        ____________________               1An IAM  official, Dale Hartford,  is also a  plaintiff, and          two affiliates  of Winship (Hillhaven Corp.  and First Healthcare          Corp.) are codefendants.  Since the  presence of these additional          parties  does not  affect  the issues  on  appeal, we  treat  the          litigation  as  if it  involved  only  the  Union (as  plaintiff-          appellant) and Winship (as defendant-appellee).                                          2          nonprofessional employees  at Winship's facility in  Bath, Maine.          Not   surprisingly,  management  resisted   this  initiative  and          exhorted the affected employees to vote against IAM's election as          a collective bargaining  representative.  As  part of its  retort          Winship  hand-delivered  two  pieces  of  campaign  literature to          employees in the putative  bargaining unit.  These handouts  form          the basis for IAM's lawsuit.                    1.  The  First Flier.   In July  Winship distributed  a                    1.  The  First Flier.                        ________________          three-page flier, the first page of which asks rhetorically:                    WHAT  WOULD YOU  DO IF  YOU GOT  THE ATTACHED                    LETTERS?                    WOULD YOU BE ABLE TO FIND ANOTHER JOB?                    HOW WOULD YOU PAY YOUR BILLS?                    WOULD YOU WISH THAT THE MACHINISTS UNION  HAD                    NEVER GOTTEN IN AT WINSHIP GREEN?          The  flier then advises recipients  that "IT'S NOT  TOO LATE" and          implores them  to "GIVE  [certain  named managers]  A CHANCE"  by          "VOT[ING] NO ON  AUGUST 4."  The  letters, addressed individually          to particular  employees and dated  one year after  the scheduled                                                       _____          election, comprise the second and third pages of the flier.   One          letter purports to be written on the Union's letterhead, complete          with a reproduction of the IAM service mark  (consisting of a set          of  machinist's tools surrounded by a gear and the IAM name)2 and          the facsimile signature of an IAM plenipotentiary, Dale Hartford.                                        ____________________               2Service marks  and  trademarks  function  to  identify  the          source  of  services and  goods,  respectively.   The  difference          between the  two types of marks is not relevant here, and thus we          will apply case law involving either form.  See Star Fin. Servs.,                                                      ___ _________________          Inc. v. AASTAR Mortgage Corp., 89  F.3d 5, 8 n.1 (1st Cir. 1996);          ____    _____________________          Volkswagenwerk Aktiengesellschaft  v. Wheeler, 814  F.2d 812, 815          _________________________________     _______          n.1 (1st Cir. 1987).                                          3          This  missive suggests that the Union had notified Winship of its          obligation,   pursuant  to  an   invented  collective  bargaining          agreement, to terminate the recipient's employment because of her          failure  to  pay certain  assessments  (e.g., union  dues  and an          initiation fee).  The other epistle, signed by Winship's director          of  operations, is  also  postdated.   It acknowledges  Winship's          receipt  of the notice and professes to inform the addressee that          the company must honor the Union's request.                    2.   The Second Flier.  The remaining piece of campaign                    2.   The Second Flier.                         ________________          literature,  disseminated  by  Winship  a  few  days  before  the          election, urges the reader to vote against unionization and warns          that union  membership will bring  significant financial burdens.          This  flier  contains  a  simulated  invoice  inscribed  on  what          purports  to be IAM's letterhead (and which bears the IAM service          mark).  Under  a heading  that reads "PAYABLE  TO THE  MACHINISTS          UNION BY [employee's name]", the invoice lists amounts designated          as  union  dues, an  initiation  fee,  and  fines.3   Commentary,          undiluted by subtlety, accompanies this listing:  "NO MATTER WHAT          THE  UNION HAS  TOLD  YOU    JUST ASK  THE  EMPLOYEES AT  LOURDES          HOSPITAL" AND "JUST ASK  THE 13 EMPLOYEES AT GENERAL  ELECTRIC IN          SOUTH PORTLAND  WHO  WERE  FINED  FOR CROSSING  THE  PICKET  LINE          THERE."    Large,  bold letters  at  the  bottom  of the  invoice          proclaim:  "WITHOUT THE MACHINISTS UNION, DO NOT PAY THIS BILL."                                        ____________________               3The  stated  amounts  are  not  only  apocryphal  but  also          extravagant.    During  the   organizing  drive,  IAM  repeatedly          declared  that there  would  be no  initiation  fee and  that  no          worker's monthly dues would exceed $20.                                          4                    Notwithstanding Winship's tactics   or, perhaps, due to          them    the employees  chose IAM  as their  collective bargaining          representative in the August 4 election.                                          B                                          B                    The Union  proved to be a  sore winner.  It  soon filed          suit against Winship  alleging inter alia  trademark infringement                                         _____ ____          and unfair competition under the Lanham Act.4  The Union premised          its  federal claims on the theory that Winship's unauthorized use          of the registered service mark occurred "in connection with . . .          services," namely, IAM's  representational services, and  thereby          transgressed sections 32(1) and 43(a) of the  Lanham Act.  See 15                                                                     ___          U.S.C.     1114(1)(a)  &  1125(a) (quoted  infra  note 5).    The                                                     _____          district court  rejected this  theory for the  reasons previously          mentioned.   See  IAM, 914  F.  Supp.  at 655-56.    This  appeal                       ___  ___          followed.          II.  THE SUMMARY JUDGMENT STANDARD          II.  THE SUMMARY JUDGMENT STANDARD                    Though the case  is unconventional,  the generic  legal          standard  that we  must apply  is prosaic.   Summary  judgment is          appropriate in  trademark infringement cases,  as elsewhere,  "if          the  pleadings,  depositions,  answers  to  interrogatories,  and          admissions on  file, together with  the affidavits, if  any, show                                        ____________________               4IAM's  complaint  also  embodied a  salmagundi  of  pendent          state-law  claims.   The  district court  dismissed these  claims          without prejudice  coincident with the entry  of summary judgment          on  the federal  claims.   See  IAM,  914 F.  Supp. at  656.   We                                     ___  ___          understand  that the Union is pursuing these claims in a separate          state  court action.   Finally,  the complaint  sought injunctive          relief  under  the Norris-LaGuardia  Act,  29  U.S.C.     101-115          (1994), but the Union now concedes the infirmity of this request.                                          5          that  there is no genuine issue as  to any material fact and that          the moving party is entitled  to a judgment as a matter  of law."          Boston  Athletic Ass'n  v. Sullivan,  867 F.2d  22, 24  (1st Cir.          ______________________     ________          1989) (quoting Fed.  R. Civ.  P. 56(c)).   Generally speaking,  a          fact is "material" if  it potentially affects the outcome  of the          suit, see Garside  v. Osco Drug, Inc., 895 F.2d  46, 48 (1st Cir.                ___ _______     _______________          1990),  and  a  dispute over  it  is  "genuine"  if the  parties'          positions on the issue are supported by conflicting evidence, see                                                                        ___          Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).  While          ________    ___________________          an  inquiring court is constrained  to examine the  record in the          light  most favorable  to the  summary judgment  opponent and  to          resolve  all reasonable  inferences  in that  party's favor,  see                                                                        ___          Hachikian v. FDIC, 96  F.3d 502, 504 (1st Cir. 1996), defeating a          _________    ____          properly  documented motion  for summary  judgment  requires more          than  the jingoistic brandishing of  a cardboard sword.   This is          especially  true  in respect  to claims  or  issues on  which the          nonmovant  bears the burden  of proof; in  such circumstances she          "must reliably  demonstrate  that specific  facts  sufficient  to          create an authentic dispute exist."  Garside, 895 F.2d at 48; see                                               _______                  ___          also Anderson, 477 U.S. at 256.          ____ ________                    We review de novo the district court's grant of summary          judgment.  See Mack  v. Great Atl. & Pac. Tea  Co., 871 F.2d 179,                     ___ ____     __________________________          181  (1st Cir.  1989).   Moreover, an  appellate tribunal  is not          bound by the lower  court's rationale but may affirm the entry of          judgment  on any independent ground  rooted in the  record.  See,                                                                       ___          e.g., Hachikian, 96 F.3d at 504; Garside, 895 F.2d at 49.          ____  _________                  _______                                          6          III.  ANALYSIS          III.  ANALYSIS                    Our analysis proceeds in five parts.                                          A                                          A                    Trademark  infringement  and  unfair  competition  laws          exist largely  to protect  the public  from  confusion anent  the          actual source of goods or services.  See, e.g., Star Fin. Servs.,                                               ___  ____  _________________          Inc. v.  AASTAR Mortgage  Corp., 89  F.3d 5,  9 (1st  Cir. 1996);          ____     ______________________          DeCosta v. Viacom Int'l, Inc., 981 F.2d 602, 605 (1st Cir. 1992),          _______    __________________          cert. denied, 509 U.S. 923 (1993); 3 J. Thomas McCarthy, McCarthy          _____ ______                                             ________          on Trademarks and Unfair Competition   23.01  (3d ed. 1996).  The          ____________________________________          Lanham  Act is cast  in this mold.   Generally speaking,  the Act          proscribes the  unauthorized  use  of a  service  mark  when  the          particular usage causes a likelihood of confusion with respect to          the identity of  the service  provider.5  See  WCVB-TV v.  Boston                                                    ___  _______     ______                                        ____________________               5Section  32(1)  of  the  Lanham  Act  governs  infringement          claims.  It stipulates in pertinent part:                         Any  person  who   shall,  without   the                    consent of the registrant                           (a)    use    in    commerce    any                         reproduction, counterfeit, copy, or                         colorable imitation of a registered                         mark in connection  with the  sale,                         offering for sale, distribution, or                         advertising   of   any   goods   or                         services on or  in connection  with                         which such use  is likely to  cause                               _____________________________                         confusion, or to cause  mistake, or                         _________                         to deceive; . . .                         shall be  liable in a  civil action                         by the registrant . . . .          15  U.S.C.   1114(1) (emphasis supplied).   Section 43(a) governs          unfair competition claims.  It stipulates in pertinent part:                    Any person who, on  or in connection with any                                          7          Athletic Ass'n, 926 F.2d 42, 44 (1st Cir. 1991); see also Societe          ______________                                   ___ ____ _______          des Produits Nestle, S.A.  v. Casa Helvetia, Inc., 982  F.2d 633,          _________________________     ___________________          641 (1st  Cir. 1992) (explaining  in respect  to trademarks  that          "only  those appropriations . .  . likely to  cause confusion are          prohibited").  Consequently, likelihood of confusion often is the          dispositive  inquiry in a Lanham  Act case.   See, e.g., WCVB-TV,                                                        ___  ____  _______          926  F.2d  at  44; Pignons  S.A.  de  Mecanique  de Precision  v.                             __________________________________________          Polaroid Corp.,  657 F.2d 482,  492 (1st  Cir. 1981).   So it  is          ______________          here.                                          B                                          B                    To demonstrate likelihood of confusion a markholder (or          one claiming by,  through, or under her) must  show more than the          theoretical   possibility  of  confusion.    See  American  Steel                                                       ___  _______________          Foundries  v.  Robertson, 269  U.S.  372,  382 (1926)  (requiring          _________      _________          probable confusion); Star, 89 F.3d at 10 (requiring evidence of a                               ____          substantial likelihood of confusion); accord 3 McCarthy, supra,                                                  ______             _____          23.01[3][a].   Just as one tree  does not constitute a forest, an                                        ____________________                    goods or services, . . . uses in commerce any                    word, term,  name, symbol, or device . . . or                    any false designation of origin . . . which                           (A) is likely  to cause  confusion,                                ___________________________                         or to cause  mistake, or to deceive                         as   to   .   .   .   the   origin,                         sponsorship,  or approval  of [such                         person's]   goods,   services,   or                         commercial  activities  by  another                         person . . .                    shall  be liable  in  a civil  action by  any                    person who believes that  he or she is  or is                    likely to be damaged by such an act.          15 U.S.C.   1125(a) (emphasis supplied).                                          8          isolated instance of confusion does not prove probable confusion.          To the contrary,  the law  has long demanded  a showing that  the          allegedly  infringing conduct  carries  with it  a likelihood  of          confounding   an   appreciable  number   of   reasonably  prudent          purchasers exercising ordinary care.   See McLean v. Fleming,  96                                                 ___ ______    _______          U.S.  245, 251 (1877); Mushroom Makers, Inc. v. R.G. Barry Corp.,                                 _____________________    ________________          580  F.2d 44,  47 (2d  Cir. 1978),  cert.  denied, 439  U.S. 1116                                              _____  ______          (1979); Coca-Cola  Co. v.  Snow Crest Beverages,  Inc., 162  F.2d                  ______________     ___________________________          280, 284 (1st  Cir.), cert. denied,  332 U.S. 809  (1947).   This                                _____ ______          means,  of course,  that confusion  resulting from  the consuming          public's  carelessness, indifference, or  ennui will not suffice.          See,  e.g., United States v.  88 Cases, More  or Less, Containing          ___   ____  _____________     ___________________________________          Bireley's Orange Beverage, 187 F.2d 967, 971 (3d Cir.) (inferring          _________________________          that "the  legislature contemplated the reaction  of the ordinary          person who is neither savant nor  dolt, [and] who . . . exercises          a normal measure  of the  layman's common  sense and  judgment"),          cert. denied, 342  U.S. 861 (1951); see also  Indianapolis Colts,          _____ ______                        ___ ____  ___________________          Inc. v. Metropolitan  Baltimore Football Club Ltd.,  34 F.3d 410,          ____    __________________________________________          414  (7th Cir.  1994) (explaining  that the  Lanham Act  does not          "protect the most gullible fringe of the consuming public").                    We  typically  consider   eight  factors  in  assessing          likelihood  of confusion:  (1)  the similarity of  the marks; (2)          the similarity  of the  goods (or, in  a service  mark case,  the          services); (3) the relationship  between the parties' channels of          trade;  (4)  the  juxtaposition  of their  advertising;  (5)  the          classes  of prospective  purchasers; (6)  the evidence  of actual                                          9          confusion; (7)  the defendant's intent in  adopting its allegedly          infringing mark; and (8)  the  strength of the  plaintiff's mark.          See Star,  89 F.3d at 10; Sullivan,  867 F.2d at 29.   While this          ___ ____                  ________          compendium  does not conform easily to the peculiar facts of this          case,  it  is  not  intended  to  be either  all-encompassing  or          exclusive.   See DeCosta v. CBS,  Inc., 520 F.2d 499, 513-14 (1st                       ___ _______    __________          Cir.  1975),  cert. denied,  423 U.S.  1073  (1976).   The listed                        _____ ______          factors are meant to be used as guides.  See Astra Pharmaceutical                                                   ___ ____________________          Prods., Inc.  v. Beckman Instruments,  Inc., 718 F.2d  1201, 1205          ____________     __________________________          (1st Cir. 1983).   No one listed factor is determinative, and any          other  factor that  has a  tendency to  influence the  impression          conveyed to  prospective purchasers by  the allegedly  infringing          conduct  may  be weighed  by the  judge  or jury  in  gauging the          likelihood of confusion.  We completely agree with the authors of          the Restatement  that "[n]o mechanistic  formula or list  can set          forth  in advance the variety  of factors that  may contribute to          the particular marketing context of an actor's use."  Restatement          (Third) of Unfair Competition   21 cmt. a (1995).                    Two related  points are  worth making.   First, because          the listed factors  must be evaluated in  context, any meaningful          inquiry  into   the  likelihood  of  confusion  necessarily  must          replicate  the  circumstances  in  which  the  ordinary  consumer          actually confronts  (or probably  will confront)  the conflicting          mark.   See, e.g.,  Libman Co.  v. Vining  Indus., Inc., 69  F.3d                  ___  ____   __________     ____________________          1360, 1362 (7th Cir. 1995), cert. denied, 116 S. Ct. 1878 (1996);                                      _____ ______          Black  Dog Tavern  Co. v.  Hall, 823  F. Supp.  48, 55  (D. Mass.          ______________________     ____                                          10          1993).   Second, Rule  56 places a  special gloss upon  the usual          analytic approach.  On summary  judgment the reviewing court must          decide  whether the evidence as a whole, taken most hospitably to          the markholder,  generates a  triable issue  as to likelihood  of          confusion.   See Sullivan,  867 F.2d  at 29;  Astra, 718  F.2d at                       ___ ________                     _____          1205;  see also 3 McCarthy, supra,   23.11 (observing that, while                 ___ ____             _____          legal  precedent governs the analysis, the result of each case is          controlled by the totality of its facts).                    Applying these  principles, we conclude that  the Union          bears  the  burden  here  of adducing  "significantly  probative"          evidence,  Anderson,  477  U.S.  at  249-50  (citation  omitted),                     ________          tending to show that an appreciable number of  prospective voters          (i.e., employees within the defined bargaining unit) were in fact          likely  to be confused or misled into believing that the service-          marked campaign  literature was produced, sent,  or authorized by          IAM.  The Union has not reached this plateau.                                          C                                          C                    As  we set  the  scene  for  the  main  thrust  of  our          analysis,  we acknowledge that the campaign stump is an odd stage          for playing out  a Lanham Act  drama.  In the  typical commercial          setting, confusion as to  the source of goods or  services occurs          when there is an unacceptably high risk that a buyer may purchase          one product or service in the mistaken belief that she is  buying          a different product  or service.  See, e.g., Star,  89 F.3d at 9.                                            ___  ____  ____          But the instant case is well off  the beaten track.  It does  not          involve  two entrepreneurs  vying to  sell competing  products or                                          11          services  in the traditional sense.   Rather, IAM  was angling to          represent the workers and,  although Winship opposed that effort,          it was neither offering nor seeking to provide a similar service.          In  the  vernacular of  the  marketplace, IAM  was  "selling" its          services to prospective union members and Winship was "selling" a          negative   the  lack of a need for any  such services or service-          provider.                    This twist  has significant implications for  a court's          assessment  of  the  likelihood  of confusion.    If  we  assume,          favorably to the  Union, that confusion as  to the source  of the          documents bearing  the IAM service  mark may at  least indirectly          deter prospective purchasers (voters within the bargaining  unit)          from acquiring (voting for) IAM's representational services, that          deterrent will exist only  if, and to the extent  that, confusion          causes  purchasers to be misinformed about the nature or value of          the  services.   We  think it  follows  inexorably that,  if  the          electorate  can readily  identify Winship  as  the source  of the          promotional  materials,  the  deterrent  vanishes.    See,  e.g.,                                                                ___   ____          McIntyre v. Ohio  Elections Comm'n,  115 S. Ct.  1511, 1519  n.11          ________    ______________________          (1995) (suggesting that once people know the source of a writing,          they can  evaluate its  message, and, at  that point, "it  is for          them to decide what is responsible, what is valuable, and what is          truth") (citation and internal quotation marks omitted).  In that          event,  there is no misleading as to  the genesis of the letters,          and the  voters can assess whether  the Winship-authored handouts          accurately describe the Union's services, or, instead, are merely                                          12          a   manifestation  of  Winship's  no-holds-barred  commitment  to          dissuade  the  voters  from  "purchasing" those  services.    Put          another  way, knowledge as to the source of the materials dispels          incipient confusion.                    The Union attempts to confess  and avoid.  It  contends          that  the recipients'  ability  to ascertain  the  source of  the          documents does not necessarily negate confusion.  This contention          hinges on the  theory that  employees may have  thought that  the          letters,  even  if delivered  by  the  company, were  actual  IAM          documents which  Winship procured  and then draped  in anti-union          invective.  But  that theory does not  fit the facts:   patently,          this  is neither  an  instance in  which an  employer distributes          copies  of a  notice  previously sent  by  a union  to  employees          elsewhere  and adds anti-union  commentary, nor  one in  which an          employer makes minor emendations  to an authentic union document.          The  letters  and  the  invoice  are composed  around  names  and          circumstances  indigenous  to   this  particular   organizational          effort.   Among other things, the letters bear a date significant          in its  relation to  the  scheduled election;  they address  each          Winship employee by name and home address; and they identify this          employer.   Source-identifiers specific  to the Winship  election          are even more pervasive in the fictitious invoice.                    The Union's fallback position seems to be that, even if          it is nose-on-the-face plain that the letters and the invoice are          not  replicas of  genuine IAM  materials, the  affected employees          still may have believed  that they somehow were based  on genuine                                          13          materials.  We think  this construct is both legally  unsound and          factually unsupported.  In the first place, a recipient's ability          to  recognize that the alleged infringer, at a minimum, must have          substantially  added  to or  altered  a  document alleviates  any          confusion as to its immediate source.   Cf. Warner Bros., Inc. v.                                                  ___ __________________          American Broadcasting  Cos., 720  F.2d 231,  246  (2d Cir.  1983)          ___________________________          (suggesting that  lack of  substantial similarity leaves  "little          basis"  for asserting  likelihood of  confusion  in a  Lanham Act          claim).    In  the  second place,  even  indulging  the  arguendo          assumption that  the contrived  documents  were based  on a  real          scenario, the  alterations  are sufficiently  extensive  that  an          ordinary recipient,  possessing a modicum  of intelligence, could          not help but recognize that Winship had tampered so substantially          with  the documents  that they  could no  longer be  perceived as          emanating  from  the  Union.6   In  other  words,  the documents'          credibility  would depend  on the  voters' assessment  of whether          Winship was  telling the truth.  See McIntyre, 115 S. Ct. at 1519                                           ___ ________                                        ____________________               6An  analogous principle  in  copyright law  is instructive.          Absent  direct evidence  of copyright  infringement, a  plaintiff          must prove "substantial  similarity" between the  copyrighted and          contested materials.   See, e.g.,  NEC Corp. v.  Intel Corp.,  10                                 ___  ____   _________     ___________          U.S.P.Q.2d 1177, 1183 (N.D.  Cal. 1989).  The applicable  test is          "whether the work  is recognized  by an observer  as having  been          taken from the copyrighted source."  Id. at 1184.  Even if a work                                               ___          is  copied,   however,  no  copyright   infringement  exists   if          substantial  changes  render the  work  unrecognizable.   See  v.                                                                    ___          Durang, 711 F.2d  141, 142  (9th Cir. 1983)  (affirming grant  of          ______          summary judgment  for the defendant); NEC Corp., 10 U.S.P.Q.2d at                                                _________          1186-87; cf. A. Dean Johnson, Music  Copyrights:  The Need for an                   ___                  ___________________________________          Appropriate  Fair Use Analysis  in Digital  Sampling Infringement          _________________________________________________________________          Suits, 21 Fla. St. U. L. Rev. 135, 158-59 (1993)  (noting greater          _____          likelihood of fair  use in copyright cases if  alterations render          an original music recording unrecognizable).                                          14          n.11  (discussing the  value  of  knowing  "the identity  of  the          source"  for the  purpose of  judging the  truthfulness of  ideas          contained  in a writing).  We conclude, therefore, with regard to          these  documents, that as long  as employees can ascertain either          who authored  or who substantially modified  the literature, they          will   readily  recognize  the  entire  document  (including  the          letters,  in one  case, and the  invoice, in the  second case) as          propaganda, and they will be in  a position to gauge its accuracy          accordingly.                    This emphasis on source recognition  takes into account          the  setting  and  the  juxtaposition of  the  parties.    Labor-          management  relations  have  not  mellowed  since  Justice  Clark          observed three decades  ago that representational  campaigns "are          ordinarily  heated  affairs .  .  .  frequently characterized  by          bitter  and extreme  charges,  countercharges, unfounded  rumors,          vituperations,   personal  accusations,   misrepresentations  and          distortions."  Linn v.  United Plant Guard Workers of  Am., Local                         ____     _________________________________________          114, 383  U.S. 53,  58 (1966).   Because  exaggeration, sometimes          ___          crossing  the line into outright  falsehood, is a  staple in such          campaigns, "consumers"  (i.e., affected  workers)  are on  notice          that both sides likely  will embellish with scant regard  for the          confining restraints imposed  by the truth.  See Baumritter Corp.                                                       ___ ________________          v.  NLRB,  386  F.2d  117   (1st  Cir.  1967)  (explaining   that              ____          inaccuracies are  indigenous to campaign propaganda  in the labor          relations  milieu).  The  acrimonious literature  disseminated by          both parties indicates that this campaign was no exception to the                                          15          rule.7                                          D                                          D                    Having woven the contextual tapestry  against which the          Union's  claims must  be  viewed, we  turn  now to  the  octet of          factors that typically inform the likelihood of confusion.  While          the strange configuration of  this case renders certain of  those          factors irrelevant or, at least, difficult to apply   square pegs          never  fit snugly  in round  holes    we make  the effort  in the          interest of completeness.  Moreover, other relevant circumstances          compensate to some degree for this lack of fit and we intersperse          them throughout our discussion.  We deem such circumstances to be          of especially  great importance here precisely  because this case          falls well outside the customary confines of the Lanham Act.                    1.   Similarity  of Marks.   The  service mark  used by                    1.   Similarity  of Marks.                         ____________________          Winship  is not merely similar;  it is identical    a photocopied          reproduction.  Still,  similarity is determined  on the basis  of          the designation's total  effect, see, e.g., Pignons, 657  F.2d at                                           ___  ____  _______          487 (considering additional,  source-identifying words printed on          goods and substantial differences in packaging), and infringement          "does not exist, though the marks be identical and the goods very          similar,   when  the   evidence  indicates   no   [likelihood  of          confusion]."  James Burrough Ltd. v. Sign of the Beefeater, Inc.,                        ___________________    ___________________________                                        ____________________               7For  example, one  IAM  flier of  the  "when did  you  stop          beating your wife?"  variety, asks:   "WHAT LIES  OR HALF  TRUTHS          DO[ES  WINSHIP] PLAN  TO  SPREAD DURING  OUR  DEBATE?"   The  IAM          materials also describe anticipated "company tactics" or "tricks"          in  unflattering  terms  and  warn  employees  to  "LOOK OUT  FOR          CORPORATE  TRAPS."    The  Winship  literature,  discussed above,          speaks for itself.                                          16          540  F.2d  266, 274  (7th  Cir. 1976).    What is  more,  we have          recognized that in certain  circumstances otherwise similar marks          are  not likely to  be confused if  they are  used in conjunction          with  clearly displayed names,  logos or other source-identifying          designations of the manufacturer.  See Aktiebolaget Electrolux v.                                             ___ _______________________          Armatron Int'l, Inc., 999 F.2d 1, 4 (1st Cir. 1993); Pignons, 657          ____________________                                 _______          F.2d  at  487.   Here,  the lengthy  propagandistic  message that          Winship printed in large  type on the fictitious invoice  and the          conspicuous, easily identifiable fliers  it sent to introduce the          letters dilute  the inference that might otherwise  be drawn from          the similarity between the marks.                    2.  Similarity of Services.  Because the parties do not                    2.  Similarity of Services.                        ______________________          offer competing  services, there is no  similitude.  Furthermore,          even  if the documents  are evaluated in the  abstract, we do not          think that  any reasonable person, viewing them in their entirety          and in  conjunction with  the accompanying materials,  would find          them similar to IAM's authentic campaign literature.                    On the one hand, any similarity to actual IAM materials          is limited to the vitriolic tone, the presence of the IAM service          mark, and the facsimile signature.  On the other hand, unlike any          genuine IAM  communication, the letters  are postdated by  a full          year and address  the employees as if  they already had opted  in          favor of union representation.  The next piece of propaganda (the          invoice) contains  anti-union messages  that are longer  and much          more  prominent than  any other  text.   And, moreover,  in stark          contrast to  handbills distributed by IAM  which invariably urged                                          17          employees to vote "yes" (i.e., for a union), the letters at issue          were attached to rabidly anti-union fliers exhorting employees to          vote "no" (i.e., against a union).  In  short, the bogus letters,          when compared to  the real McCoy,  are distinctive in  appearance          and antithetical  in content.  Given  such gross dissimilarities,          it cannot reasonably be  inferred that ordinarily prudent workers          would be likely to confuse the source of the letters.   See Senco                                                                  ___ _____          Prods.,  Inc. v.  International Union  of  Elec. Workers,  311 F.          _____________     ______________________________________          Supp.  590,  592  (S.D.  Ohio 1970)  (finding  no  likelihood  of          confusion as to  sponsorship of handbills  circulated by a  union          bearing  employer trademark  in  bold print  on  the first  line,          followed by union identifiers of equal prominence).                    3-5.   Channels  of Trade  and Advertising;  Classes of                    3-5.   Channels  of Trade  and Advertising;  Classes of                           ________________________________________________          Prospective Purchasers.   Following circuit precedent, see Equine          Prospective Purchasers.          ______________________                                 ___ ______          Technologies, Inc.  v. Equitechnology, Inc., 68 F.3d 542, 546 n.5          __________________     ____________________          (1st  Cir.  1995),  we address  the  next  three  factors in  the          ensemble.   The parties'  channels of trade  are widely disparate          (reduced to  bare  essence, IAM  sells representational  services          whereas  Winship  sells  nursing  home  beds),  and  there  is no          evidence   that  the  channels  advertising  those  services  are          similar.                    To  be sure, as the  election campaign picked up steam,          both  parties  propagandized  (and, in  that  sense,  advertised)          through  the  same  medium (print),  and  both  of  them targeted          exactly  the same  narrowly-defined  cadre of  individuals.   The          class  of prospective  purchasers  is necessarily  restricted  to                                          18          those  individuals and  is,  therefore, identical.   Still,  that          identicality does  not advance the  Union's cause in  the special          circumstances of this case.                    On  this point,  the requisite  inquiry is  not limited          merely to determining whether the class of prospective purchasers          is the same or different.   Instead, a court called upon to assay          likelihood  of confusion  must ponder  the sophistication  of the          class, thereby taking account of the context in which the alleged          infringer uses the mark.  See, e.g., Astra, 718 F.2d  at 1206-07;                                    ___  ____  _____          HQ  Network Sys.  v. Executive Headquarters,  755 F.  Supp. 1110,          ________________     ______________________          1118-19 (D. Mass.  1991).  Here, the  organizational effort began          in  May.  Among  other things, the  Union held open  meetings and          sent the  affected workers periodic "organizing  updates."  Thus,          by  late July   when  Winship began to  distribute the challenged          documents   persons within  the class could not help  but know of          the ongoing campaign and of its excesses.                    We  must presume that  the class members  are of normal          intelligence,  see McLean, 96 U.S.  at 251; Church  of the Larger                         ___ ______                   _____________________          Fellowship, Unitarian Universalist v. Conservation Law Found.  of          __________________________________    ___________________________          New Eng., Inc.,  221 U.S.P.Q. 869,  873 (D. Mass. 1983),  and the          ______________          previous months'  electioneering would have given  them a certain          degree of  enforced sophistication.   Common sense  dictates that          this group    above all others   would  filter the rivals' claims          through the seine of this knowledge.  Cf. Linn, 383 U.S. at 60-62                                                ___ ____          (discussing  the  NLRB's  toleration  of  abusive and  inaccurate          statements made during organizational campaigns and agreeing that                                          19          the ultimate appraisal  of such  statements must be  left to  the          good sense of those voting in the elections).  Accordingly, class          members  were  especially  unlikely  to be  misled  by  Winship's          unauthorized use of the IAM mark.                    6.   Actual  Confusion.   IAM proffers  Dale Hartford's                    6.   Actual  Confusion.                         _________________          affidavit as the mainstay of its case (indeed, its solitary piece          of evidence) on  the issue  of actual confusion.   The  affidavit          states briefly  that "several"  employees asked  whether Hartford          had in fact written the letter that bore his signature.8  It also          reports  that  one  employee  questioned  whether  she  would  be          required to pay $300 in dues and a $200 initiation fee.  Hartford          opines  that "these figures  seem to have  had to have  come from          [the apocryphal union invoice]."   This evidence, standing alone,          is insufficient to prove actual confusion.                    The fundamental problem with  the Hartford affidavit is          that, even taking  its contents  as literally true,  it does  not          undermine what is perfectly obvious from a reading of the record:          no person of ordinary prudence  and normal intelligence, aware of          what was happening around her, would have been confused as to the          source  or  sponsorship  of the  letters.    For  one thing,  the          inquiries to which Hartford alludes reveal at most that employees          doubted whether he would have written a letter unfavorable to the          very  cause he  had labored  to  promote.   On their  face, these                                        ____________________               8Although Hartford  recalled that these statements were made          in front of approximately ten other employees at a union meeting,          he claimed that  he could not  locate the list of  attendees and,          consequently,  could not name either the persons who made inquiry          of him or those who overheard the queries.                                          20          inquiries do not evince actual confusion as to the source of  the          jury-rigged  documents.    See   Restatement  (Third)  of  Unfair                                     ___          Competition     23  cmt.  c  (1995)  ("Evidence  of inquiries  by          customers  as  to whether  the  plaintiff and  the  defendant are          associated  . .  .  may not  establish  the existence  of  actual          confusion if the nature of the inquiries indicates that consumers          perceive a difference between  the designations and are skeptical          of the existence of a connection between the users.").                    For another thing, skepticism is particularly rampant            and  wise    as to claims  made in  the course  of any organizing                                                             ___          drive.  In the course of this organizing drive   a struggle which                                   ____          incited more than its  share of hyperbole  on both sides    class          members  had ample reason to be skeptical.   They must have known          that Winship distributed the fliers (which embodied the letters),          and  they therefore  knew that  the letters had  to be  viewed in          light  of  Winship's motivation.   In  all events,  forewarned is          forearmed,  see Miguel  de Cervantes,  Don  Quixote de  la Mancha                      ___                        __________________________          (circa 1615), and, here, the Union disseminated literature in the          early  going predicting  that management  would stoop  to dubious          tactics.                    The question about  dues is  an even thinner  reed.   A          lone  inquiry   does  not  indicate  probable   confusion  of  an          appreciable number of purchasers.  See Mushroom  Makers, 580 F.2d                                             ___ ________________          at  47.   Regardless, this  lone inquiry    which  questioned the          veracity  of  the prediction  concerning  union dues     does not          ________          indicate  confusion as to  the source of  the fictitious invoice.                                         ______                                          21          See  Pignons,   657  F.2d  at  490   (finding  consumer's  letter          ___  _______          expressing  surprise at  perceived affiliation  between competing          companies "clearly insufficient" to prove actual confusion).                    The Union strives  to persuade us  that, no matter  how          paltry  the  evidence  of  actual confusion,  it  is  nonetheless          adequate  to survive  testing on  summary judgment where  we must          accept all reasonable inferences favorable to  the nonmovant.  We          are  not convinced.   The  core purpose  of the  summary judgment          procedure is  to "pierce  the boilerplate  of the  pleadings" and          evaluate  the proof to determine  whether a trial  will serve any          useful purpose.  Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791,                           _____    ________________________          794  (1st  Cir.  1992),  cert.  denied,  507  U.S.  1030  (1993).                                   _____  ______          Consequently,  summary judgment cannot be sidestepped by pointing          to  evidence that is  merely colorable or  suggestive, see, e.g.,                                                                 ___  ____          Mack, 871 F.2d  at 181,  or evidence that  lacks substance,  see,          ____                                                         ___          e.g., Mesnick v.  General Elec. Co., 950 F.2d 816,  822 (1st Cir.          ____  _______     _________________          1991), cert. denied,  504 U.S.  985 (1992), or  evidence that  is                 _____ ______          inherently incredible, see, e.g., United States v. Joost, 92 F.3d                                 ___  ____  _____________    _____          7, 14 (1st Cir. 1996).                    In this  instance, the  Union  submitted no  affidavits          from  any   individuals  who  personally  received  the  campaign          literature,9 and we  think that it  is inherently implausible  to                                        ____________________               9In point of fact, the  only such affidavit in the  record            that  of an employee named Gail Snipe   states unequivocally that          she "recognized  all of the materials  . . . to  be my employer's          campaign  materials."  She  adds:  "The face  of the documents as          well as the context in which the documents were presented made it          clear that the campaign materials were from the employer, not the          IAM."                                          22          infer from  the inquiries described by  Hartford that prospective          voters  actually were confused as to the source of the materials.          The summary  judgment paradigm requires  us to  draw and  respect          only  reasonable  inferences; we  need  not infer  that  which is                __________          farfetched  or fantastic.  See Sheinkopf v. Stone, 927 F.2d 1259,                                     ___ _________    _____          1262 (1st  Cir. 1991); Medina-Munoz v. R.J. Reynolds Tobacco Co.,                                 ____________    _________________________          896 F.2d 5, 8 (1st Cir. 1990); Raskiewicz v. Town  of New Boston,                                         __________    ___________________          754 F.2d  38, 45 (1st Cir.),  cert. denied, 474 U.S.  845 (1985).                                        _____ ______          Here, the  face of  the documents,  the accompanying  fliers, the          environment  in  which they  were  distributed, and  the  lack of          significantly  probative evidence of  actual confusion combine to          render unreasonable the inference that IAM would have us draw.                    7.  Intent.   IAM relies heavily on the  principle that                    7.  Intent.                        ______          when an  alleged infringer  intentionally copies a  trademark, it          may be presumed that  she intended to cause confusion  and profit          thereby.10  See Sullivan, 867 F.2d at 34.  But the presumption is                      ___ ________          inapposite in situations where there is no persuasive evidence of          any intent  to use the mark to suggest official sponsorship.  See                                                                        ___          WCVB-TV, 926 F.2d at  45-46 (attaching considerable importance to          _______          the  alleged  infringers'  contemporaneous  offer   to  broadcast          disclaimers,  thus  making  clear  that they  were  not  official          sponsors of the trademarked product).                                        ____________________               10This  rebuttable presumption works with maximum efficiency          in the  commercial setting.  There, an infringer typically copies          a trademark  to palm off her  own goods as those  of a recognized          manufacturer, thereby free riding on the  markholder's reputation          and  goodwill.   See  generally McCarthy,  supra,    25.01.   The                           ___  _________            _____          presumption  works  less  well  in  cases  that  do  not  involve          competitors.                                          23                    The template of this  case is similar to that  of WCVB-                                                                      _____          TV.     Winship  incorporated  the  bogus   documents  in  fliers          __          prominently displaying anti-union commentary and containing pleas          by  named managers for votes  against unionization.  In addition,          the  fake invoice itself  includes what amounts  to a conspicuous          disclaimer.   Under  the circumstances, no  reasonable factfinder          could    conclude,     notwithstanding    Winship's    purposeful          misappropriation  of  the  IAM  service mark,  that  the  company          intended to mislead employees about the source of the handouts.                    8.   Strength.  Under the Lanham Act strong marks enjoy                    8.   Strength.                         ________          the greatest protection against infringement.   See Aktiebolaget,                                                          ___ ____________          999 F.2d at 5; Pignons, 657 F.2d at 492.  The IAM service mark is                         _______          robust, having been  duly registered and widely promoted for over          thirty years.  But the  muscularity of a mark, in and  of itself,          does  not relieve  the  markholder  of  the  burden  to  prove  a          realistic likelihood of confusion.  See Aktiebolaget, 999 F.2d at                                              ___ ____________          5;  Pignons, 657  F.2d  at 492.   Because  the Union  has utterly              _______          failed to  produce evidence sufficient  to meet that  burden, see                                                                        ___          supra, the mark's strength cannot carry the day.          _____                                          E                                          E                    After giving due weight  to each factor and considering          the unique circumstances that necessarily inform our analysis, we          find no  colorable  basis for  a  likelihood of  confusion,  and,          hence,  no trialworthy  Lanham  Act  claim.    In  reaching  this          conclusion  we stress  the significance  of the  factual setting.          Here, the ambiance powerfully influenced the impression  conveyed                                          24          by  Winship's  unauthorized use  of the  IAM  service mark.   The          parties'  preparations for  the  election  inflamed the  historic          enmity   between   labor   and   management   and   colored   the          communications distributed  by  both protagonists.   The  climate          inevitably conditioned  voters to view with  suspicion any claims          made  by either  party about  the other.   This  suspicion peaked          shortly  before  the election,  and  that is  when  the offending          documents surfaced.  Moreover, the documents, when received, were          affixed  to clearly  identifiable management  propaganda.   These          additional, relevant circumstances  counsel persuasively  against          any realistic possibility of confusion as to           the source or sponsorship of the mismarked literature.          IV.  CONCLUSION          IV.  CONCLUSION                    Considering  the  record  as  a  whole  in  the  light  most          favorable  to the  summary judgment  loser, we hold  that there  is no          triable issue of  fact as to  likelihood of confusion.   It is  simply          inconceivable that employees who received the challenged literature at          the height  of a  fiercely disputed  union organizing  campaign would,          upon  even  a cursory  glance,  be  apt  to  believe that  IAM  either          distributed or contributed in any meaningful way to these vociferously          anti-union tracts.                    We add a postscript.  The employer wins this appeal, but not          our   admiration.     While  we   strongly  disapprove   of  Winship's          misappropriation of IAM's service  mark, however, the Union has  other          available remedies to redress  that infraction.  See, e.g.,  Linn, 383                                                           ___  ____   ____          U.S. at  61 (approving  state-law remedy in  analogous circumstances).                                            25          For  our  part, we  are  unwilling  to  stretch the  Lanham  Act  into          unfamiliar contours simply for  the sake of punishing conduct  that we          deplore.   While  we are  not  willing to  venture quite  as far  into          uncharted waters as our  concurring colleague   after all,  unlike the          authorities  on  which  she  primarily  relies,  see post,  this  case                                                           ___ ____          involves  neither a  political  campaign nor  a  parody    the  policy          concerns  that undergird  her views  fortify our  resolve to  hold the          line.   By  like token,  the special  circumstances that  the district          court described at length,  see IAM, 914 F. Supp. at  653-56   such as                                      ___ ___          the noncommercial nature of  the unauthorized use, the absence  of any          competition  between  the  parties  in  the representational  services          market, and the fact that Winship did not appropriate the mark for use          "in  connection with"  any services  of its  own    point in  the same          direction.11  We need go no further.          Affirmed.          Affirmed.          ________                                Concurring Opinion Follows                                          ____________________               11We  take no  view  of the  concurring opinion's  suggested          holding,  the grounds on  which the  district court  premised its          ruling, or  the other theories urged by Winship in support of the          judgment  below.   While the  Union's case  may be  vulnerable on          several fronts,  the absence of any  meaningful confusion renders          further comment supererogatory.                                            26          Saris, U.S.D.J.                    I  concur on the ground  that Winship Green's  misuse of the          union's trademark in its campaign literature during the union election          is not  a commercial use  of the mark  adumbrated by   Sections 32  or          43(a)  of the  Lanham  Act, as  amended,  15 U.S.C.     1114(1),  1125          (1994).                                             I                                             I                    The union alleges that Winship  Green's use of its trademark          during the election  violated Sections 32 and 43(a) of the Lanham Act.                                             A                                             A                    Section   32   of  the   Lanham   Act  concerns   "trademark          infringement" and  proscribes misuse of another's registered trademark          in  commerce   "in  connection  with  the  sale,  offering  for  sale,          distribution,  or  advertising  of any  goods  or  services  on or  in          connection with  which such use  is likely to  cause confusion,  or to          cause mistake, or to deceive."12  15 U.S.C.   1114(1)(a) (1994).                                        ____________________               12  Section  32 of  the Lanham  Act,  as amended,  states in          pertinent part:                    (1)  Any person  who shall, without the consent  of the                    registrant --                         (a) use in commerce any reproduction, counterfeit,                         copy, or colorable imitation of a registered  mark                         in connection  with the  sale, offering  for sale,                         distribution,  or  advertising  of  any  goods  or                         services on  or in connection with  which such use                         is likely to cause confusion, or to cause mistake,                         or to deceive ...                                         * * *                    shall be liable in a civil action by the registrant for                    the remedies hereinafter provided....                                            27                                             B                                             B                    Section  43(a)  provides  broader   protection,  prohibiting          "unfair competition" by  use of any mark, registered or  not.  See Two                                                                         ___ ___          Pesos,  Inc. v. Taco Cabana, Inc., 505  U.S. 763, 768 (1992).  Section          _________________________________          43(a)  prohibits  two  types  of activities:  "false  designations  of          origin,"   15  U.S.C.       43(a)(1)(A)  ("Prong   (A)")  and   "false          descriptions," 15 U.S.C.    43(a)(1)(B)  ("Prong (B)").13   See  Truck                                                                      ___  _____          Components, Inc. v. K-H Corp., 776 F. Supp. 405, 409 (N.D. Ill. 1991);          _____________________________          3  J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition                                   _____________________________________________          27.02[3] (3d ed.  1996) (discussing history of  the "two prongs"  of                                          ____________________          15 U.S.C.   1114(1) (1994).               13  Section 43(a) of the  Lanham Act, as  amended, states in          pertinent part:                       1125.    False  designations  of  origin  and  false                                ___________________________________________                    descriptions forbidden                    ______________________                    (a)  Civil  action.   (1)  Any  person  who,  on or  in                    connection  with   any  goods  and  services,   or  any                    container for  goods, uses in commerce  any word, term,                    name, symbol, or device, or any combination thereof, or                    any false  designation of  origin, false or  misleading                    description   of   fact,   or   false   or   misleading                    representation of fact, which --                         (A) is  likely to cause mistake, or  to deceive as                         to the affiliation,  connection, or association of                         such  person with  another  person, or  as to  the                         origin,  sponsorship,  or approval  of his  or her                         goods,  services,  or  commercial   activities  by                         another person, or                         (B)  in  commercial   advertising  or   promotion,                         misrepresents    the   nature,    characteristics,                         qualities, or geographic origin  of his or another                         person's    goods,    services,   or    commercial                         activities.                    shall be liable  in a  civil action by  any person  who                    believes that he or she  is or is likely to be  damaged                    by such act.          15 U.S.C.   1125(a) (1994) (emphasis in original).                                            28          43(a) --    43(a)(1)(A)  ("trademark infringement") and    43(a)(1)(B)          ("false advertising").                    Prong (A)14  prohibits false  designations of the  origin or          sponsorship of goods or  services.  15 U.S.C.    1125(a)(1)(A) (1994).          Typical claims under prong (A) would  involve a new trademark that was          confusingly similar to an already established one, or an  attempt by a          defendant  to "palm-off" its goods as those  of a competitor by use of          the competitor's  mark.  See  Truck Components,  776 F. Supp.  at 409;                                   ___  ________________          McCarthy on Trademarks, supra, at    27.02[4] (describing these claims          ______________________  _____          as "trademark infringement").                      In  contrast,  the  protection   under  prong  (B)  is  very          different.    Following  its  amendment  in  1988,  prong (B)  creates          liability   for  misrepresentations   in  commercial   advertising  or          promotion as to the  "nature, characteristics, qualities or geographic          origin" of another person's goods or services.  15 U.S.C.   1125(a)(1)                     _______          (1994); see also  Trademark Law Revision Act, Pub. L.  100-662,   132,                  ________          102 Stat. 3946 (1988); U.S. Healthcare, Inc. v. Blue  Cross of Greater                                 _______________________________________________          Philadelphia, 898 F.2d 914,  921 (3d Cir. 1990) (discussing  effect of          ____________          1988 amendment  to Lanham Act);   McCarthy on Trademarks, supra,  at                                              ______________________  _____          27.02[4].   The  Senate Committee  Report accompanying  this amendment          explained the need for this addition to the Act as follows:                         In  one important  area, however,  the courts                    have refused  to apply  the section.   Based  on a                    1969 seventh  circuit  decision, the  courts  have                    held   that  Section   43(a)   applies   only   to                    misrepresentations  about  one's own  products and                                        ____________________               14  In 1992 Congress redesignated paragraphs  (1) and (2) of          section 43(a) as subparagraphs  (A) and (B).  See  Oct. 27, 1992,                                                        ___          Pub. L. 102-542,   3(c), 106 Stat. 3568.                                       29                    services; it does not extend to misrepresentations                    about competitor's products  or services.  Bernard                                                               _______                    Food  Indus. v.  Dietene Co.,  415 F.2d  1279, 163                    ____________________________                    USPQ 265  (7th Cir. 1969), cert.  denied, 397 U.S.                                               _____________                    912, 164  USPQ 481  (1970).  The  committee agrees                    that this  effect is  illogical on both  practical                    and  public  policy  levels  and  that the  public                    policy  of deterring  acts  of unfair  competition                    will be served if Section 43(a) is amended to make                    clear  that   misrepresentations  about  another's                    products are as  actionable as  misrepresentations                    about one's own.          S. Rep. No. 515,  100th Cong., 2d Sess. (1988), reprinted in 1988                                                          ____________          U.S.C.C.A.N.  5577; see also  McCarthy on Trademarks, supra, at                                ________  ______________________  _____          27.02[4] (stating that 1988 amendment codified "two  prongs" of            43(a): "part  one relat[ing]  to .  .  . unregistered  trademark,          tradename  and  trade dress  infringement  claims,  and part  two          relat[ing] to  . . . false  advertising (as well  as trade libel)          claims").  Thus, prong (B) prohibits misrepresentations about the          quality   of  a   defendant's  own  goods   --  even   where  the          misrepresentations do not tend to confuse its goods with those of          a competitor or otherwise misstate the origin  of the goods -- as          well  as affirmative misrepresentations about another's products.          Truck  Components,  776 F.  Supp. at  409  (citing In  re Uranium          _________________                                  ______________          Antitrust Litigation,  473 F. Supp.  393, 408 (N.D.  Ill. 1979));          ____________________          see also McCarthy  on Trademarks, supra,  at   27.04  (describing          ________ _______________________  _____          elements of prima facie case under prong (B)).                                                                                                    II                                          II                    I am in agreement with the majority that the origin and          sponsorship of  the allegedly  infringing documents was  never in          doubt.  With  respect to section  43(a) of the Lanham  Act, prong          (A)  is  inapplicable because  there  is  no  evidence,  or  even                                          30          contention,  that the  company used the  union's mark  to deceive          bargaining unit members as to the affiliation of the company with          the union or as to the  sponsorship of its services by the union.          Quite the contrary.                     However, there is evidence  that Winship Green used the          union's  trademark to misrepresent the characteristics and nature          of the  union's services (i.e., the  amount of union  dues or the          purportedly draconian  results of  failure to pay  them), thereby          implicating prong (B), governing  false descriptions.  Cf. Energy                                                                 ___ ______          Four,  Inc. v. Dornier Medical  Systems, Inc., 765  F. Supp. 724,          _____________________________________________          730   (N.D.   Ga.  1991)   (describing   cause   of  action   for          misrepresentation  under  Section   43(a)(1)(B)  and   collecting          cases);  Brandt Consol., Inc. v. Agrimar Corp., 801 F. Supp. 164,                   _____________________________________          174  (C.D. Ill. 1992) (same); McCarthy on Trademarks, supra, at                                          ______________________  _____          27.04   (same).     Because  this   evidence  that   the  company          misrepresented  the union's  services may  be sufficient  for the          fact-finder to find confusion as to the "nature, characteristics,          [or]  qualities"  of the  union's  services,  I would  not  allow          summary judgment for the company under prong (B) on the ground of          a lack of confusion.                                         III                                         III                    A  firm ground for summary judgment, it seems to me, is          that  the Lanham Act  creates no liability  because the deception          did not occur in connection with commercial sales or advertising,          as required under the Act, but rather in campaign hand-outs.                       The Lanham Act protects only against certain commercial                                                                 __________                                          31          uses of trademarks.   Section 32 governs the  use of a registered          mark "in commerce . . . in connection with the sale, offering for          sale, distribution, or advertising of any goods or services."  15          U.S.C.   1114(1)(a) (1994).  Section 43(a) is likewise limited to          uses of marks "in commerce," 15 U.S.C.   1125(a)(1) (1994), which          the Act  defines as  using or  displaying a mark  in the  sale or          advertising  of goods or services,15 see 15 U.S.C.   1127 (1994).                                               ___          And, section 43(a)(1)(B) limits misrepresentation claims to those          cases involving "commercial advertising or promotion."  15 U.S.C.            1125(a)(1)(B) (1994).                    While  there is  no appellate  case directly  on point,          trial  courts have rejected efforts  to extend the  Lanham Act to          cases  where  the  defendant  is  not  using  or  displaying  the          trademark in the sale, distribution  or advertising of its  goods          or services.  See  Lucasfilm Ltd. v. High Frontier,  622 F. Supp.                        ___  _______________________________          931, 934 n.2 (D.D.C. 1985) (rejecting  the claim that advertising          companies could be  held liable  for using the  trade name  "Star          Wars"  in the political debate over a national policy because the                                        ____________________               15 15 U.S.C.   1127 states in pertinent part:                    The term "use in commerce" means the bona fide use of a                    mark  in the  ordinary  course of  trade, and  not made                    merely to reserve  a right in a mark.   For purposes of                    this chapter, a  mark shall be deemed  to be in use  in                    commerce --                                        * * *                         (2)  on services  when it is used or  displayed in                         the  sale  or  advertising  of  services  and  the                         services are rendered in commerce, or the services                         are  rendered  in more  than one  State or  in the                         United States and a foreign country and the person                         rendering the  services is engaged  in commerce in                         connection with the services.                                          32          trademark laws only reach activities in which a trademark is used          in connection with selling  or advertising services of commercial          or noncommercial  defendants); Stop the Olympic  Prison v. United                                         __________________________________          States Olympic  Comm., 489  F. Supp.  1112, 1124 (S.D.N.Y.  1980)          _____________________          (expressing serious doubts as to  whether the Lanham Act  applies          to the deceptive use of the Olympic trademark by a group opposing          the  conversion  of Olympic  facilities  into a  prison,  in part          because "there is no suggestion that the alleged deception was in          connection with  any goods  or services");  Reddy Communications,                                                      _____________________          Inc.  v. Environmental  Action  Found.,  477  F. Supp.  936,  946          ______________________________________          (D.D.C. 1979)  (rejecting  claim that  an  environmental  group's          caricature of an energy industry service mark violated the Lanham          Act  where the  company failed  to prove  that  the environmental          group used the service mark to "identify or  promote" the sale of          its  publications);  see  generally  L.L.  Bean,  Inc.  v.  Drake                               ______________  ____________________________          Publishers, Inc.  811 F.2d 26,  32 (1st Cir. 1987) (holding under          ________________          a  state anti-dilution state that  a parody was  not a commercial          use of plaintiff's mark because the publisher "did not use Bean's          mark to  identify or  market  goods or  services to  consumers"),          cert. denied, 483 U.S. 1013 (1987).          ____________                    Nonetheless, some  forms of union-related  activity may          constitute commercial sale or advertising that is protected under          the  Act.   See, e.g.,  Brach  Van Houten  Holding, Inc.  v. Save                      _________   _________________________________________          Brach's Coalition  for Chicago, 856  F. Supp. 472,  475-476 (N.D.          ______________________________          Ill. 1994) (finding Lanham  Act protection applicable where union          used company logo in connection with the sale and distribution of                                          33          its buttons and stickers and solicitation of donations to support          the coalition's opposition to  a plant closing and was  likely to          cause confusion as to the company's affiliation with, or approval          of,  defendant's proposals);  Marriott Corp.  v. Great  Am. Serv.                                        ___________________________________          Trades  Council,  AFL-CIO,  552  F.2d 176,  179  (7th  Cir. 1977)          _________________________          (rejecting   the  union's  contention  that  the  National  Labor          Relations  Board had  exclusive jurisdiction  over an  action for          trademark  infringement arising  under the  Lanham Act  where the          union allegedly  used the  company's trademark  in advertisements          which suggested an affiliation between the company and the  union          in advertising its services  to prospective employees).  However,          such commercial activity is simply not present here.                    Accordingly, the union's  limited property right  under          the  Lanham Act against commercial misuse of its trademark is not          implicated  in this case.  See generally Lucasfilm Ltd., 622 F.2d                                     _____________ ______________          at 933 ("It is well established that the property right conferred          by  a trademark is very  limited.").  While  the union rightfully          complains about  the company's unfair  tactics, it must  find its          federal  remedy  for  deceptive  campaign  literature  under  the          National  Labor Relations Act, 29  U.S.C.    141  et seq. (1994).                                                            _______          See Linn  v. United  Plant Guard Workers  of Am., Local  114, 383          ___ ________________________________________________________          U.S. 53, 60 (1966)  (permitting libel action under state  law for          defamatory  statements  published  during  a  union  organization          campaign and discussing authority of the National Labor Relations          Board  to set  aside elections  where "a  material fact  has been          misrepresented  in the  representation campaign;  opportunity for                                          34          reply has  been lacking;  and  the misrepresentation  has had  an          impact on the free  choice of the employees participating  in the          election").                      Because  the  Court  reaches  the  same conclusion  for          somewhat different reasons, I join in its judgment.                                          35
