Custom Vehicles, Inc. v. Forest River, Inc.
In the absence of registration, a producer can still obtain relief by proving that the defendant is using a mark that “is likely to cause confusion . . . as to the origin, sponsorship or approval of his or her goods.” Lanham Act, § 43(a), 15 U.S.C. § 1125(a); Wal-Mart Stores, Inc. v. Samara Bros.,Inc., 529 U.S. 205, 209 (2000); 5 McCarthy on Trademarks and Unfair Competition, supra, § 27:14. But as we said earlier, without proof of secondary meaning there is no basis for thinking a descriptive mark the name of a brand—no basis therefore for supposing that consumers would think Forest River’s van “Work and Play” had been produced by Custom Vehicles instead. AFFIRMED.
