We consider whether the Plaintiffs' mark is distinctive. The Plaintiffs' mark is not coined. They have used the mark continuously for four years. They have advertised sparingly, mainly through the malls in which their stores are located, although they have received some spontaneous promotions from the media. Their business amounts to three retail outlets, plus a 1-800 number. The scope of their reputation spans a percentage of the fifteen million people each year who visit the malls in which their stores are located, and it spans an uncertain number of people who are familiar with the stores through the media or otherwise through second-hand means. At this stage, we find that the Plaintiffs' mark is not sufficiently distinctive. Because it is not, we do not now need to consider whether the Defendants' use of the mark dilutes its distinctiveness. We conclude that the Plaintiffs have little chance of success on the merits of this claim.
B. Adequacy of a Legal Remedy and Irreparable Harm
"The damages occasioned by trademark infringement are by their very nature irreparable and not susceptible of adequate measurement for remedy at law." Processed Plastic Co. v. Warner Communications, Inc., 675 F.2d 852, 858 (7th Cir. 1982); C.B. Fleet Co., Inc. v. Complete Packaging Corp., 739 F. Supp. 393, 398 (N. D. Ill. 1990). Moreover, "there is no effective way to measure the loss of sales or potential growth--to ascertain the people who don't knock on the door or identify the specific persons who do not reorder because of the existence of the infringer." Instrumentalist Co. v. Marine Corps League, 509 F. Supp. 323, 333 (N. D. Ill. 1981), aff'd, 694 F.2d 145 (7th Cir. 1982).
The Plaintiffs' concept of "TV Land" encompasses products related to all manner of television shows, but primarily current shows. As Dr. Calder testified, if the Defendants use their proposed mark, they would quickly and forcefully narrow the concept of "TV Land" to one that encompasses products related only to classic, non-current shows. In the wake of this narrowing, an uncertain number of potential customers would enter the Plaintiffs' stores and become disappointed with the selection, and an uncertain number would not enter them at all. More generally, if the Defendants use their proposed mark, the Plaintiffs would lose control of their reputation and good will. Therefore, we conclude that, if the Defendants use it, the Plaintiffs would have an inadequate legal remedy and would suffer irreparable harm.
C. Balance of the Harms
If we do not enjoin the Defendants, the Plaintiffs would lose control of their reputation and good will. See Int'l Kennel, 846 F.2d at 1091-92. They would risk losing four years worth of nurturing their business. And they would risk losing their entire investment. On the other hand, if we enjoin the Defendants, the Defendants would suffer a loss of reputation because, at this late stage, they would have to change the name of their proposed network. They testified that they could change the name, but that it would be difficult. The Defendants would lose months worth of nurturing their proposed network under the name "TV Land," one of five final name choices. And the Defendants would lose advertising and promotion expenditures of $ 1.2 million, a small portion of the cost of launching their new network. We consider that the Defendants knew of the Plaintiffs' stores as early as February 1992, and they knew of the Plaintiffs' mark as early as June 1995, so they knowingly risked many of the harms they now face. On balance, we find that the Plaintiffs face greater harms.
D. The Public Interest
The public interest is served by protecting trademarks. See, e.g., Int'l Kennel, 846 F.2d at 1092, n. 8. In this case, because we find that the Plaintiffs have a likelihood of success on the merits, we find that we will best serve the public interest by protecting their trademark and enjoining the Defendants.
Therefore, for the reasons discussed above, we grant the Plaintiffs' motion for d preliminary injunction. Accordingly, we enjoin the Defendants, their officers, agents, servants, employees, and all others in active concert or participation with them, from using the phrase "TV Land," or any similar phrase, as a mark or brand in their networking or retailing operations.
November 30, 1995
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT
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