USDC IN/ND case 3:21-cv-00645-DRL document 82 filed 05/18/23 page 1 of 17

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
FOREST RIVER, INC., ) Civil Action No.: 3:21-cv-00645-DRL- MGG
)
Plaintiff, ) Judge Damon R. Leichty
)
)
INTECH TRAILERS, INC., ) PLAINTIFF’S REPLY BRIEF IN
) SUPPORT OF PARTIAL MOTION FOR
Defendant. ) SUMMARY JUDGMENT

“Summary judgment is not a dress rehearsal or practice run; it is the put up or shut up

moment in a lawsuit, when a party must show what evidence it has that would convince a trier of

fact to accept its version of events.” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007)

(quotations omitted). That is, “the mere existence of a factual dispute is insufficient to overcome

a motion for summary judgment;…the nonmovant must present definite, competent evidence in

rebuttal.’” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (emphasis added).

Short on “definite, competent evidence” and long on argument and conjecture, inTech’s opposition

fails to meet this burden. Instead, inTech attempts to rebut Forest River’s actual evidence on

consumer confusion with the conclusory suggestions of its counsel as to how the relevant

consumers could alternatively view the confusing similarities between the parties’ marks.1

inTech’s reliance on argument and speculation is necessary because it—unlike Forest

River—failed to survey any actual consumers. But inTech’s speculation does not constitute the

kind of evidence required to contradict the undisputed evidence of confusion already in the record.

Montgomery v. American Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010) (“Before [a nonmovant]

1
See, e.g., inTech’s Opp. to Mot. for Sum. Judgment (DE 78), p.10 (discussing the similarities between the marks and
stating “it is reasonable to expect that consumers have gotten used to distinguishing between brands that are similar
in that manner.”); id. at p.11 (“[s]eeing such different exterior appearances in DELLA TERRA versus TERRA
products …inTech contends that it is highly unlikely that consumers would believe the same company was the source
of both types of products.”).
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can benefit from a favorable view of evidence, [the party] must first actually place evidence before

the courts.”). Importantly and as discussed below, inTech also fails to distinguish this case from

the myriad cases cited by Forest River that support a finding of likelihood of confusion and

infringement at summary judgment under similar circumstances. Just as in those cases, inTech’s

undisputed infringement can be determined, here and now.

I. THE RECORD SUPPORTS A LIKELIHOOD OF CONFUSION FINDING.

inTech concedes, or otherwise fails to meaningfully dispute, the following material facts

which, when considered together, are sufficient on their own to find inTech liable on all of Forest

River’s claims (See DE 25, Forest River First Amended Complaint):

 Forest River and inTech sell the same exact type of product—RV travel trailers (See, e.g.,
inTech’s Addl. St. of Material Facts (“ASMF”) (DE 80) 110, 112).

 Those products bear the marks below (See, e.g., DE 69-3, pp.17-18, 67) and each company
uses the same graphics supplier (See, e.g., inTech’s Resp. to Forest River’s St. of Material
Facts (“RSMF”) (DE 79) at 67):

Forest River InTech

 The parties market and sell their trailers through the same trade channels, including some
of the same dealerships, and each sells its trailers throughout the U.S. (DE 78, p.12).

 Forest River has been selling DELLA TERRA and Mountain Design branded trailers since
2018, and has amassed significant sales since that time (ASMF 110; DE 69-1, ¶10).

 DELLA TERRA is distinctive and is of at least moderate strength (DE 78, p.17).

 inTech did not even make its first physical Terra unit—a prototype—until 2020 and did
not have a vendible product bearing the mark until late 2020 (RSMF 72).

 inTech did not complete a single sale of its Terra until December 2020 (id. 75).

 Despite being aware of Forest River’s claims that it was infringing before it ever shipped
a Terra unit, inTech intentionally continued selling Terras (id. 75; c.f., ASMF 113).

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 Actual Consumers of travel trailers and those who intend to purchase travel trailers are
confused by inTech’s Terra, as shown by Prof. David Franklyn’s undisputed survey and
testimony (Forest River’s St. of Material Facts (“SMF”)(DE 69) at 90-95).

 Consumers have been diverted to inTech’s Terra website after searching for Della Terra
(RSMF 84-85, 97-98).

Unable to refute these material facts, inTech resorts to mischaracterizing or arguing about

much of the SMF, attempting to create disputes of material fact. But inTech’s argumentative and

otherwise evasive denials should be rejected. Bordelon v. Chicago Sch. Reform Bd. of Trustees,

233 F.3d 524, 529 (7th Cir. 2000). inTech’s improper denials take several forms throughout its

Response to the SMF and each should be disregarded.

 Evasive and Argumentative Denials: See, e.g., RSMF 69, where inTech attempts to evade
the undisputed fact that it “did not manufacture for sale or sell any Terra travel trailer units
until 2020.” inTech spends a full page discussing its sale of other types of trailers, until
later admitting (RSMF 72) that inTech did not even have “prototype” versions of the Terra
until 2020 and (RSMF 75) that the first production Terra sale was not completed and
shipped until December 2020.

 Denials Directly Contradicting the Testimony. See, e.g., RSMF 78, in which inTech
disputes that its employee testified that inTech sells TERRA travel trailers to all kinds of
purchasers, despite its own witnesses’ testimony to that exact fact. See also, RSMF 69(d),
in which inTech misstates its own witnesses’ testimony to suggest that a TERRA travel
trailer was offered for sale in 2017, despite the witnesses’ actual testimony that inTech
offered its other product, the “Sol” at that time.

 Denials Directly Contradicting the Exhibits. See, e.g., RSMF 9, where inTech argues that
DELLA TERRA was not placed on travel trailers but cites exhibits showing it on those
very trailers (RASMF 111).2 See also, RSMF 25, where inTech suggests that the sales
figures attached to the SMF at 69-1, Ex. D, reflect sales for the entire Forest River
subdivision of East to West. Forest River’s supporting declaration identifies Exhibit D as
“profit and loss statements for the division of E2W that sells Della Terra travel trailers
(“Div 500”).” In RSMF 91, inTech mischaracterizes Forest River’s expert survey and
accuses Prof. Franklyn of “blocking out” inTech’s name in the image of the Terra used in
his survey, despite the fact that it is not blocked out but instead appears in the image.

2
Due to the low-quality of certain filings, i.e. printed then scanned by a court reporter, close review is required to
view the mark on the trailers. To address this issue (See e.g., Document 81-11 page 17, left lower corner of trailer;
See also, RSMF 21), Forest River is supplementing the record with more evidence of DELLA TERRA travel trailers
bearing DELLA TERRA prior to East-to-West’s (“E2W”) sale to Forest River and after. (See RASMF 111.)

3
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This theme continues in inTech’s Additional Statement of Material Facts, where certain of
inTech’s “facts” are often directly contrary to the evidence in the record. See, e.g., Forest
River’s Resp. to inTech’s Addl. St. of Material Facts at 137, refuting the suggestion that
the Forest River Mountain Design has “always” been used adjacent to the EAST TO WEST
mark. (See also, id. 111, 120.)

 Denials Improperly Based on Witness “Credibility.” Likewise improper are inTech’s

attempts to create a question of fact by questioning the credibility of Forest River’s
witnesses, including Lisa Rees, at RSMF 1-5, 11, 17, 25-26, 30, 33, 60-61, and Forest
River’s survey expert, Prof. Franklyn, at ASMF 138.3

None of these argumentative and evasive denials create genuinue disputes of material fact.

II. FOREST RIVER IS ENTITLED TO JUDGMENT AS A MATTER OF LAW.

inTech does not refute that Forest River’s claims boil down to two issues—first, the

protectability of the Forest River Marks and, second, whether inTech’s use of TERRA and its

mountain design is likely to cause confusion among end-users. But inTech fails to create a genuine

dispute on these issues, which Forest River demonstrated in its opening Motion. As a result, this

Court should grant Forest River’s motion for summary judgment.

A. inTech’s Opposition fails to demonstrate a genuine dispute of material fact as to the

protectability of the Forest River Marks.

The evidence now in the record indisputably demonstrates that Forest River is the owner

3
Slabon v. Sanchez, 2021 WL 4146909 at *5 (N.D. Ill. September 13, 2021) (“A non-movant cannot create a
genuine issue of material fact by calling into question the credibility of the movant’s witness.”).

4
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of the Forest River Marks and that those marks are protectable.4 While inTech raises four

arguments in an attempt to dispute the protectability of Forest River’s Marks, each argument fails.

First, inTech erroneously argues that it has priority of the “TERRA” mark, asserting that

its display of a single poster at a single RV dealer-specific trade show in Indiana in September of

2017 establishes this point. (DE 78, p.2.) But this assertion fails as a matter of law because inTech

did not manufacture, let alone sell, a travel trailer under the TERRA mark until 2020—three years

after this alleged display. Even assuming inTech displayed its poster in 2017—which is in

dispute5—the following facts demonstrate Forest River’s priority and are not in dispute:

 inTech did not make sales of the TERRA at that trade show and not until 2020;

 inTech did not even take any orders for the TERRA at that trade show;

 inTech did not even have a physical prototype of the TERRA until 2020;

 inTech did not publically offer the TERRA for sale to end-users or even announce its
existence to the consuming public until November of 2020; and

 inTech did not ship a single TERRA unit until late 2020.

Under this set of undisputed facts and even assuming it did in fact present the poster at that

September 2017 trade show, inTech still fails to establish its use of TERRA until 2020 – two years

after it admits Forest River had been using the Forest River Marks. See e.g., DE 68, p.12 (citing

cases holding that promotional activities without actual saleable products are insufficient to prove

priority). The cases that inTech cites only reinforce Forest River’s ownership.

In New West v. NYM Co. of California, 595 F.2d 1194 (9th Cir. 1979), the court found

priority based upon the defendant’s shipment of 430,000 promotional mailers bearing the mark in

4
inTech does not contest Forest River’s active registrations of the Forest River Mountain Design. Likewise, inTech
has not contested Forest River’s federal registration of its DELLA TERRA mark on any basis other than its own
erroneous claim of priority over “TERRA” (discussed herein).
5
Various witnesses have called into question this representation. (See RASMF 105.) inTech’s graphic supplier even
said he would be surprised to hear that it was present at that show given that he created the TERRA logo that currently
adorns inTech’s units, but did not do so until 2020. (Id.)

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question that, in turn, generated over 13,500 subscriptions. Id. at 1197. inTech’s poster—

indisputably displayed only once—and accompanied with oral statements to two distributors, does

not come close to the level of promotion or “public identification” needed to establish use. Indeed,

“[n]o goodwill is created when a mark is seen by the consuming public only in very limited

quantity.”6 Sebastian Brown Prods. LLC v. Muzooka Inc., No. 15-CV-01720-LHK, 2016 WL

5910817, at *9 (N.D. Cal. Oct. 11, 2016); See Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151,

1158 (9th Cir. 2001) (no priority of use even where plaintiff mailed 35,000 post cards, generating

128 responses but no sales).7 The same is true of inTech’s reliance upon Johnny Blastoff v. Los

Angeles Rams Football Co., 188 F.3d 427 (7th Cir. 1999). While the Blastoff court found actual

sales were not necessary to establish priority in that case under the “Public Use Doctrine,” the

court also held that franchisors like the defendant were entitled to a “strong presumption

of…priority in their marks.” Id. at *434. In Blastoff, the public’s widespread recognition of the

mark’s association with the Los Angeles Rams established its priority of use in spite of its lack of

sales. Id. (describing public use of mark in association with defendant). The Public Use Doctrine

does not apply to inTech’s use of a single poster.

Indeed, unlike the outlier cases relied upon by inTech in its Opposition, the Seventh Circuit

normally requires a mark be associated with a saleable product—a “vendible article in the market,

with intent by the proprietor to continue its production and sale.” S.C. Johnson & Son, Inc. v.

Nutraceutical Corp., 835 F.3d 660, 666 (7th Cir. 2016)(emphasis). Displaying a poster at a single

6
Further, the “consuming public” – end-users – did not even know of Terra until its launch in November of 2020.
(See DE 69-15, p.33: “We will be releasing the Terra to the retail public, today at 4:00 PM…”, sent on November 19,
2020; and DE 69-13, p.31, referring to a January 2021 trade show as Terra’s “first public show debut.”)
7
See also, Soc. Techs. LLC v. Apple Inc., 4 F.4th 811, 819 (9th Cir. 2021) (no triable issue as to use when plaintiff
could show only sporadic early activities but no sales); Am. Auto. Ass'n of N. California, Nevada & Utah v. Gen.
Motors LLC, 367 F. Supp. 3d 1072, 1100 (N.D. Cal. 2019) (describing communications with distributors as “mere
preparation” to use a mark, insufficient to establish use); Guantanamera Cigar Co. v. Corporacion Habanos, S.A.,
672 F. Supp. 2d 106, 110 (D.D.C. 2009).

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trade show three years before that product is ever actually available for sale, capable of being sold,

or made known to the general consuming public is, as a matter of law, insufficient to establish

priority. (See DE 68, p.12, citing authority rejecting sporadic “use” as qualifying for priority.)

Second, in light of its specious claim to priority, inTech makes a passing reference to a

third-party registration of “TERRA” for a different product—gas-powered motorhomes. Although

it does not explain, inTech appears to be raising a new, untimely, and waived affirmative defense

of “jus tertii”—i.e., claiming a third-party possesses trademark rights superior to Forest River. The

jus tertii defense has been rejected in this court for decades. Bodum USA, Inc. v. Lifetime Brands,

Inc., No. 14-CV-3365, 2015 WL 3932107, at *6 (N.D. Ill. June 24, 2015) (jus tertii defense is not

allowed in a trademark case); SiLite, Inc. v. Creative Bath Prod., Inc., No. 91 C 5920, 1993 WL

243162, at *2 (N.D. Ill. June 29, 1993) (same). Moreover, inTech failed to submit any actual

evidence that this third party, Fleetwood, is even using TERRA in any fashion.8 In reality,

Fleetwood’s website demonstrates that it is not selling a motorhome under TERRA, further

shutting the door on inTech’s attempt to rely upon a uniformly rejected and waived defense. S

Indus., Inc. v. Diamond Multimedia Sys., Inc., 991 F. Supp. 1012, 1018 (N.D. Ill. 1998) (trademark

rights are acquired by use, not by registration); RASMF 102.

Third, inTech half-heartedly asserts that Forest River did not acquire the marks as part of

its asset purchase of East-to-West & North-to-South, Inc. (“E2W”) (RSMF 17-18.) inTech’s

assertion is not only contrary to the undisputed evidence in the record (see SMF 17) but is

irrelevant. Even if Forest River did not acquire the Forest River Marks as part of its asset purchase

it, not E2W, has been using DELLA TERRA and the Mountain Design for nearly five years and

8
inTech has supplied the Court with no images of Fleetwood’s use of TERRA or the style in which it was displayed;
no evidence of Fleetwood’s sales of such motorhomes; no evidence as to whether that use continues; no testimony
from Fleetwood; and no explanation as to how Fleetwood’s purported use effects Forest River’s ownership of the
DELLA TERRA mark on an entirely different product.

7
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for more than two years prior to inTech’s infringement. S Indus., Inc. at 1018 (N.D. Ill. 1998).

Fourth, inTech’s eleventh-hour attempt to assert the invalidity of Forest River’s Indiana

state registration for DELLA TERRA based upon fraud is without merit. (See DE 78, pp.23-24.)

inTech failed to assert fraud as an affirmative defense in its answer and waived it. Reed v.

Columbia St. Mary's Hosp., 915 F.3d 473, 479 (7th Cir. 2019). inTech further fails to present

evidence in its opposition that, if construed in its favor, could meet the high burden to prove fraud

“to the hilt.” Donovan v. Bishop, No. 1:09-CV-275-WTL-MJD, 2011 WL 1560991, at *2 (S.D.

Ind. Apr. 21, 2011) (granting summary judgment against claim for cancellation based upon

fraudulent procurement and stating “’[t]he very nature of the charge of fraud requires that it be

proven to the hilt with clear and convincing evidence. There is no room for speculation, inference

or surmise...’”) (quotations omitted). inTech provides no evidence of fraud and the evidence in the

record directly refutes any claims that Forest River’s registration is improper. (See RASMF 111.)

inTech has failed to create a genuine dispute of material fact as to the protectability of the

Forest River Marks and the court may therefore turn to the likelihood of confusion analysis.

B. inTech fails to create a genuine dispute regarding the likelihood of confusion caused
by its use of TERRA and its Mountain Design.

The parties agree on the relevant factors for determining whether consumer confusion is

likely. (DE 78, p.5.) As explained below, each of the factors weigh in Forest River’s favor.

1. inTech fails to refute that the marks are similar.

At the outset, inTech admits that Forest River’s DELLA TERRA and inTech’s TERRA are

displayed on the relevant products in “a similar font.” (DE 78, p.10). Left with nothing else, inTech

relies upon the additional word element DELLA to conclude that consumers will not confuse

DELLA TERRA and TERRA. But inTech fails to acknowledge, let alone distinguish, the myriad

authority cited in Forest River’s motion rejecting the argument that an additional word element

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will eliminate confusion. (See DE 69, pp.15-16, collecting cases finding confusion likely even if

one mark contains additional word or multiple word elements).

Moreover, and despite inTech attempts to parse the parties’ marks in search of minor

differences, confusing marks “need not be identical, but only similar, for there to be a likelihood

of confusion.” New York State Elec. & Gas Corp. v. U.S. Gas & Elec., Inc., 697 F. Supp. 2d 415,

432 (W.D.N.Y. 2010); See also Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108,

114 (2d Cir.2006) (“Courts should keep in mind that in this context the law requires only confusing

similarity, not identity”). The assertions of inTech and its counsel on minor differences between

Forest River’s Mountain Design and inTech’s mountain logo, like the addition of DELLA, do not

create a genuine issue of material fact as to the marks’ overall similarities.

Likewise, inTech’s conclusory statements that consumers are able to distinguish DELLA

TERRA and TERRA because they are ostensibly “used to” close name association and mountain

designs with RVs is unsupported by evidence of any kind. inTech does not provide evidence of

any “close names” on travel trailers or other uses of mountain designs in the industry or, most

importantly, any survey of end-users’ perceptions on “close names” and mountain designs.

inTech’s assertions are mere conjecture that cannot take the place of actual evidence. Montgomery

v. American Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010) (“mere conclusory allegations do not

constitute evidence”). This factor weighs heavily in favor of Forest River.

2. inTech fails to create a genuine issue of material fact as to the similarities of the
parties’ travel trailers.

inTech admits that it and Forest River use their respective marks to sell towable travel

trailers. (DE 78, p.10.) Unable to refute that both parties are selling the same product, inTech

presents evidence on differences in product design and price in an attempt to create a genuine issue

of material fact on the similarities between their travel trailers. (Id. at 11.) However, in doing so,

9
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inTech misstates the inquiry—courts routinely find confusion when products are not identical

because the products need only be related. See, e.g. AutoZone, Inc. v. Strick, 543 F.3d 923, 931

(7th Cir. 2008) (“[o]ur inquiry…is not whether they are interchangeable, but whether ‘the parties’

products are the kind the public might very well attribute to a single source (the plaintiff)’” and

finding confusion, despite differences, because “both parties here operate automotive-oriented

businesses that target segments of the general automobile-using public”) (emphasis added)9; (see

also cases at DE 68, p.16). inTech fails to address and concedes that the parties’ products do not

have to be identical as a matter of law. inTech’s relied-upon differences in travel trailer design or

price do not create a genuine issue of material fact—and, in any event, the survey evidence of

record refutes inTech’s assertion and demonstrates customer confusion, reinforcing this point. See

Section II, B, 6, infra.

3. inTech admits that the parties operate in identical trade channels.

inTech admits that the parties operate in the same trade channels. (DE 78, p.12.)

Attempting to salvage a defense, inTech suggests that the Court should somehow find that identical

trade channels decrease the likelihood of confusion. But inTech offers zero authority and zero

evidence substantiating that the parties’ identical trade channels have an opposite effect on

consumers’ perceptions from what courts typically hold. Contrary to inTech’s speculation, when

the trade channels of two parties are the same, confusion is likely. See, e.g., Express Welding, Inc.

v. Superior Trailers, LLC, 700 F. Supp. 2d 789, 799 (E.D. Mich. 2010) (“both the defendants and

plaintiff sell their trailers through the same dealer network. This factor, therefore, supports a

finding of a likelihood of confusion.”). This factor weighs heavily in Forest River’s favor.

9
The same is obviously true here, given the undisputed fact that the parties’ towable travel trailers are sold by some
of the same travel trailer dealers (RSMF 79), that both parties target all travel trailer consumers (see SMF 35, 43, 78,
85), and that Forest River sells a wide variety of different types of travel trailers (including some of identical style of
construction as inTech’s Terra) (Id. 35, 36; DE 69-3, Ex. I.).

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4. inTech fails to refute that the degree of care utilized by end-users makes confusion
more likely.

inTech admits (DE 78, p.16) that the relevant consumer in the Court’s analysis of this factor

is the end-user consumer—not RV dealers, upon whom inTech repeatedly relies in an attempt to

conflate the issues. The undisputed evidence demonstrates that travel trailer end-users vary in

sophistication level—to which inTech’s own hand-picked lay dealer witnesses testified.10 All.

Bank v. New Century Bank, 742 F. Supp. 2d 532, 560 (E.D. Pa. 2010) (the court must consider

whether the “routine” customer will be confused, not the more sophisticated customers). As a

result, the Court must analyze this factor while considering routine customers, not just those who

do extensive research. And importantly, Forest River submitted undisputed evidence of how actual

consumers perceive the parties’ use of DELLA TERRA and TERRA through survey evidence.11

Prof. Franklyn’s survey included actual consumers inclusive of sophistication levels—and a

“significant percentage” were confused by the parties’ marks.12

In fact, Franklyn’s survey found an 18% rate of “affiliation” confusion, a confusion rate

that other courts have acknowledged may be likely in cases involving two parties whose marks

and products are the same—such as this case. (see DE 68, p.19) Those cases hold that similar

10
See SMF 38-42.
11
In order to qualify for Prof. Franklyn’s survey, consumers “had to select that they had either: A. Purchased a towable
recreational vehicle from a dealer in the last three years B. Intended to purchase a towable recreational vehicle from a
dealer in the next two years.” (See DE 69-11, Ex. 101, p.24).
12
inTech’s citation to AM Gen. Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 827 (7th Cir. 2002) does not support
the existence of a genuine issue of material fact in this case. In AM Gen Corp., the court considered Jeep and H2
Hummer vehicles sold at “well-branded” dealerships specific to the products. Id. at 828. In significant contrast, inTech
has not presented any evidence of “well-branded” Forest River or inTech dealerships, because none exist, and the
parties’ products are sold at the very same locations. In fact, the Daimler court specifically acknowledged that a
“consumer’s high sophistication does not foreclose confusion” because the fact that a buyer may “understand that the
product is a Hummer does not eliminate possible confusion as to whether DaimlerChrysler is the source of
manufacture or affiliated with the manufacturer.” Id. at 828. The same issue is present here—consumers are affiliating
inTech’s TERRA travel trailer and Forest River’s DELLA TERRA travel trailer. Further, and as the court in Daimler
noted, confusion can occur both “before and after the sale” such as when the products in suit are “rolling down the
highways” and acting as “free commercials.” Id. at 827. While the court in Daimler had no “persuasive evidence to
warrant” Daimler’s fears of such pre and post-sale confusion before it (id.), Franklyn’s survey evidence and the other
evidence of actual confusion in this case make clear that such confusion is likely to occur here.

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marks on similar products are more likely to cause confusion in sophisticated consumers because

they assume that an affiliation must exist for the two marks to co-exist. inTech neither distinguishes

these cases nor attempts to rebut the actual consumer responses confirming affiliation confusion

in the survey (see SMF 94), as best illustrated by a consumer who believed that the parties’ marks

and products were affiliated because: “the Terra fonts are basically the same and if the logo was

not approved by Della Terra, that would likely spark a civil lawsuit.” (Id. at TestID 136, and

others). This factor should be weighed in Forest River’s favor or, at worst, is neutral.

5. inTech admits that the Forest River Marks are strong.

inTech admits that DELLA TERRA is suggestive and of moderate strength and likewise

admits that the Forest River Mountain Design is distinctive. (DE 78, pp.17-18.) inTech further

fails to meaningfully refute Forest River’s significant sales, nationwide market penetration, and

widespread promotion of its marks. AutoZone, Inc. v. Strick, 543 F.3d 923, 933 (7th Cir. 2008)

(mark’s strength determined in part by its economic and marketing strength). This undisputed

evidence demonstrates the strength of the Forest River Marks.

inTech nonetheless attempts to undermine the strength of the Mountain Design by

erroneously stating that the use of third-party mountain designs diminishes the likelihood that

consumers associate the Mountain Design with Forest River.13 However, inTech waived a defense

based upon third-party uses because it failed to assert it in its Answer (DE 26) and its attempt to

first raise this defense in its Opposition should be rejected. Even if inTech had timely raised this

defense, it failed to present any evidence of such third-party uses in its Opposition, as was its

burden. Ramada Franchise Sys., Inc. v. Royal Vale Hosp. of Cincinnati, Inc., No. 02 C 1941, 2005

13
Assuming inTech’s argument had any merit (it does not), c.f. with inTech’s citation to HospiceCare, Inc. v. BJM
Hospice, L.L.C., in which the non-moving party upon a hearing for preliminary injunction provided actual evidence
of other uses in the marketplace. inTech has not supported its arguments with any such evidence.

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WL 435263, at *10 (N.D. Ill. Feb. 16, 2005). To the extent inTech implies that Forest River cannot

enforce its Mountain Design because it purportedly only uses the mark in a composite mark with

the East-to-West name (DE 78, p.18), inTech’s assertion is factually incorrect. Forest River uses

the Mountain Design by itself, as well. (See ASMF 137.) Moreover, even assuming Forest River

used its Mountain Design only with the E2W name, a plaintiff may enforce a design component

of a composite mark if it often uses that design element in isolation. Jack Wolfskin Ausrustung Fur

Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 1372 (Fed. Cir.

2015). The undisputed evidence demonstrates that Forest River’s marks are of medium to high

strength and this factor weighs in favor of Forest River.

6. inTech fails to create a genuine dispute as to the existence of actual confusion.

As it relates to actual confusion, Forest River has supplied undisputed evidence of

confusion in the marketplace: first, through its expert survey witness; second, through undisputed

evidence in the form of consumers being diverted from searching for DELLA TERRA products to

inTech’s Terra web-page due to similarities in the marks14; and, third, through evidence of

confusion in a consumer at an RV trade show. In response, inTech presents zero evidence to refute

Forest River’s evidence or to create a genuine dispute. Further, and because inTech failed to submit

a survey on confusion, Forest River’s evidence on actual confusion through Prof. Franklyn’s

testimony is unrebutted and undisputed. As Forest River’s authority reflects (see DE 68, p.22,

collecting cases finding confusion at the same rate or lower than found by Franklyn to establish

likelihood of confusion), Franklyn’s survey is sufficient to support a finding of actual confusion.

14
See Promatek Indus., Ltd. v. Equitrac Corp., 300 F.3d 808, 812 (7th Cir. 2002), as amended (Oct. 18, 2002);
Morningware, Inc. v. Hearthware Home Prod., Inc., 673 F. Supp. 2d 630, 637 (N.D. Ill. 2009) (initial interest
confusion possible under similar circumstances and noting that, in the Seventh Circuit, it may be likely even where
“consumers who are misled to a website are only briefly confused”); DE 69-18, Dep. of inTech marketing manager,
at pp.88-98, Ex. 3 thereto, testifying that “sharing the same name [TERRA] is definitely going to make things higher
possibilities of being served by Google in ads or an organic search” when discussing inTech’s Google AdWords.

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As to inTech’s critiques of Franklyn’s survey, inTech acknowledges that its critiques are

properly considered only in terms of Franklyn’s credibility at this stage. As with inTech’s attacks

on Lisa Rees’ credibility, inTech’s critiques and mischaracterizations of Franklyn’s survey cannot

strip it of its evidentiary value at summary judgment. Slabon v. Sanchez, 2021 WL 4146909 at *5

(N.D. Ill. September 13, 2021). For example, inTech criticizes Franklyn’s “fast paced” survey for

not matching consumers’ “real world” experiences (without any citation to authority that would

support this specific critique under the circumstances), but inTech fails to address the fact that the

survey permitted respondents to look at the stimuli15 as long as they wished and required them to

spend at least ten seconds viewing each stimuli. (See DE 81-19, p.63 of dep.). And inTech’s

critique is immaterial given that the universe of consumers surveyed either purchased a travel

trailer in the last three years or planned to purchase one in the next two. The survey’s respondents

were thus imbued with the very characteristics and familiarity with the industry that inTech claims

is missing from the test sample. inTech’s other primary critique, which it curiously describes as a

“computational error,” is likewise not supported by expert testimony, is lay testimony from

counsel, and goes against standard survey taking practices used in the field.16

7. inTech’s intent to palm-off is undisputed.

inTech’s opposition admits that it received Forest River’s cease and desist letter before

shipping a single Terra unit which, on its own, is meaningful evidence of inTech’s intent to palm-

off and infringe the Forest River Marks. Life After Hate, Inc. v. Free Radicals Project, Inc., 410

15
As explained above, inTech’s suggestion that the stimuli in Franklyn’s survey “blocked out” inTech’s name is also
against the evidence in the record, which shows that the stimuli does include inTech’s name.
16
As Franklyn explained during his deposition, the exclusion of the fringe survey times of respondents who engaged
in “speeding” through the survey is a general policy utilized by his survey collection company to ensure accuracy.
(See DE 81-19, p.101 of dep.) inTech has not cited to a single case in support of its argument that the exclusion of
fringe survey times somehow compromised the results of Mr. Franklyn’s survey. Nor has it cited to the opinion of its
own expert—who did not identify this “computational error” as a critique. inTech’s argument is deserving of little
consideration as a result.

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 USDC IN/ND case 3:21-cv-00645-DRL document 82 filed 05/18/23 page 15 of 17

F. Supp. 3d 891, 909 (N.D. Ill. 2019); AT&T Corp. v. Synet, Inc., 1997 WL 89228, at * 11 (N.D.Ill.

Feb. 11, 1997) (“when a defendant continues to infringe on a plaintiff’s mark after receiving a

cease and desist letter, that infringement may be deemed deliberate”). In addition, inTech does not

address, or even distinguish, Forest River’s authority holding that “the use of another’s style or

script constitutes presumptive evidence of deliberate copying and an intent to confuse”—just as

inTech has done here. (See DE-68, p. 25, citing Porsche Cars N. Am., Inc. v. Manny’s Porshop,

Inc., 972 F. Supp. 1128, 1130–31 (N.D. Ill. 1997). The above evidence—along with the undisputed

evidence on inTech’s use of a former Forest River mark, OASIS; use of a new mountain design

before its “public launch;” and inTech’s use of the very same graphic supply company as Forest

River illustrate a reckless disregard for Forest River’s ownership rights over the Forest River

Marks and inTech’s intentional infringement. This factor weighs heavily in Forest River’s favor.

C. inTech has failed entirely to support its purported affirmative defense of “assumption
of the risk.”

As an initial matter, inTech fails to cite any cases supporting the notion that “assumption

of the risk” is an actual recognized defense to trademark infringement. In any event, inTech

incorrectly assumes in its opposition that Forest River bears the burden to disprove inTech’s

affirmative defense. (See DE 78, p.25.) However, “a summary judgment on the issue of liability

encompasses all affirmative defenses and implicitly challenges the non-movant to establish a basis

for finding that the defenses are both applicable and supported by sufficient facts.’” Ramada

Franchise Sys., Inc. v. Royal Vale Hosp. of Cincinnati, Inc., No. 02 C 1941, 2005 WL 435263, at

*10 (N.D. Ill. Feb. 16, 2005). inTech failed to meet its burden with respect to this defense and

several others discussed above. None of inTech’s defenses can stand in the way of summary

judgment. The Court should grant Forest River’s motion on all counts in the Complaint.

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USDC IN/ND case 3:21-cv-00645-DRL document 82 filed 05/18/23 page 16 of 17

Respectfully submitted,

s/ Philip R. Bautista
Philip R. Bautista (Ohio Bar No. 0073272)
pbautista@taftlaw.com
JoZeff W. Gebolys (Ohio Bar No.0093507)
(admitted pro hac vice)
jgebolys@taftlaw.com
TAFT STETTINIUS & HOLLISTER LLP
200 Public Square, Suite 3500
Cleveland, Ohio 44114
Phone: (216) 241-2838
Fax: (216) 241-3707

Tracy N. Betz (Indiana Atty. No. 24800-53)

tbetz@taftlaw.com
TAFT STETTINIUS & HOLLISTER LLP
One Indiana Square, Suite 3500
Indianapolis, Indiana 46204
Phone: (317) 713-3544
Fax: (317) 715-4535

Counsel for Plaintiff, Forest River, Inc.

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 USDC IN/ND case 3:21-cv-00645-DRL document 82 filed 05/18/23 page 17 of 17

CERTIFICATE OF SERVICE

I hereby certify that on May 18, 2023 the foregoing was filed electronically. Notice of this

filing will be sent to all parties by operation of the Court’s electronic filing system, and parties

may access this filing through the Court’s system.

s/ Philip R. Bautista
Philip R. Bautista (Ohio Bar No. 0073272)

Counsel for Plaintiff, Forest River, Inc.

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