A & H Sportswear, Inc. v. Victorias Secret Stores, Inc
In A & H Sportswear, Inc. v. Victorias Secret Stores, Inc., 237 F.3d 198, (3d Cir. 2000), the district court found after a bench trial that the defendants use of Miracle Bra in connection with swimwear was not likely to cause confusion with the plaintiffs Miraclesuit mark, also used for swimwear.
Addressing the district courts finding that the defendant had not adopted its mark with the intent to confuse consumers, the Third Circuit explained:
A defendants mere intent to copy, without more, is not sufficiently probative of the defendants success in causing confusion to weigh such a finding in the plaintiffs favor; rather, defendants intent will indicate a likelihood of confusion only if an intent to confuse consumers is demonstrated via purposeful manipulation of the junior mark to resemble the seniors. Id. at 225-26.
The appeals court held that the district courts finding on this factor was not clear error because the record indicated that the defendant had brought the mark into swimwear because of its success in lingerie, not in an effort to ride on the plaintiffs good name. Id. at 226.