Finally, the magistrate concluded that defendants have not intended to exploit plaintiffs' good will or to mislead the public. The magistrate noted that defendants emphasize "Manny's" over "Porshop" and that some customers believe "Porshop" stands for "performance oriented repairs." First, defendants' claim that "Porshop" stands for "performance oriented repair shop" is strained, at best. Specifically, the assertion that a repair shop specializing in Porsches has coincidentally chosen a name so remarkably close to the name "Porsche" is of dubious credibility. Moreover, the use of another's style or script constitutes presumptive evidence of deliberate copying and an intent to confuse. Toys R Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F. Supp. 1189, 1199 (E.D.N.Y. 1983); Caesars World, Inc. v. Caesar's Palace, 490 F. Supp. 818, 824 (D. N.J. 1980). Plaintiffs have provided sufficient evidence to support their claim that defendants intended to benefit from the Porsche marks.
In light of these factors, plaintiffs have shown that defendants' name and script are likely to confuse customers. The magistrate noted that even if there is a likelihood of confusion, plaintiffs fail to show that a substantial number of customers are likely to be confused. Door Systems, Inc. v. Pro-Line Door Systems Inc., 83 F.3d 169, 173 (7th Cir. 1996). However, Door Systems does not suggest that the number of confused customers is an additional factor to be considered. Rather, Door Systems suggests the seven factor test itself is the means for determining whether a substantial number of customers are likely to be confused. Indeed, the seven factors here suggest that a significant number of customers can in fact confuse the affiliation of Manny's Porshop with plaintiffs.
B. ANTI-DILUTION CLAIMS
Plaintiffs' anti-dilution claims (Counts III and IV) are even more persuasive. In order to prove dilution, plaintiffs need not show they are in competition with defendants or that customers are likely to be confused. 15 U.S.C. § 1127. Rather, plaintiffs need only show the mark is famous and defendants' use is likely to cause dilution. Intermatic, Inc. v. Toeppen, 947 F. Supp. 1227, 1238 (N.D. Ill. 1996).
The magistrate concluded that defendants did not dilute plaintiffs' marks because defendants did not advertise the Porshop name and because customers who see defendants' name are sophisticated. First, defendants do advertise the Porshop name. See Pl. Ex. C. Moreover, defendants' advertisement of the name "Porshop" is irrelevant; the Act prohibits even innocuous use. Intermatic, 947 F. Supp. at 1240. Second, the magistrate's reliance on what sophisticated customers would believe is misplaced. There is no requirement under the Act that plaintiffs show a likelihood of confusion. Id. It is sufficient that the name "Porshop" has the likely effect of diluting the name "Porsche" and plaintiffs' unique script. Accordingly, plaintiffs are likely to prove that defendants are diluting the Porsche marks.
II. IRREPARABLE HARM
Infringement of trademark rights cause irreparable harm, even absent a showing of business loss. Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 16 (7th Cir. 1992). The Seventh Circuit has found that damages caused by trademark infringement and dilution are by their very nature irreparable and are not susceptible to a remedy at law. International Kennel Club. v. Mighty Star, Inc., 846 F.2d 1079, 1092 (7th Cir. 1988).
Defendants, in contrast, provided the magistrate with insignificant evidence of irreparable harm. The magistrate noted Manny's has developed supplier relationships that might be harmed if defendants are required to change their name. However, it is difficult to discern how defendants will be injured by changing their name to "Manny's" or "Manny's Repair Shop." Defendants are at little risk of losing suppliers as a result of a name change that still uses "Manny's." Accordingly, the balance weighs heavily in plaintiffs' favor.
The magistrate found plaintiffs' ten year delay in bringing this suit suggests plaintiffs will not suffer irreparable harm. However, there is a strong public policy in favor of voluntary settlements. Vaughan Mfg. Co. v. Brikam Intern., Inc., 814 F.2d 346, 351 (7th Cir. 1987). Indeed, the delay here is the result of plaintiffs' attempt to settle this case, a settlement that appears to have been breached by defendants. Porsche should not be punished for pursuing a non-litigious course of action.
Plaintiffs' objections to the magistrate's report and recommendations are sustained. Plaintiffs' motion for a preliminary injunction is granted. Defendants are directed to cease using the name "Porshop" and Porsche's stylized script pending the outcome of this litigation.
Suzanne B. Conlon
United States District Judge
June 9, 1997