Sunless, Inc. sells tanning booths and accompanying spray tan solution under the “Mystic Tan” mark. Sunless claims that applying Mystic Tan solution in a Mystic Tan booth results in a “Mystic Tan Experience.” Palm Beach, Inc. owns and franchises a chain of tanning salons. It owns a number of Mystic Tan-branded booths, and it used to buy Mystic Tan-branded tanning solution to use in them. Indeed, it had no choice, because the Mystic Tan booths were designed to accept only Mystic Tan solution. But now Palm Beach has jury-rigged the booths so that they will operate with its own distinctly branded spray tan solution, unapproved by Sunless. Sunless sought a preliminary injunction under the Lanham Act, arguing that the jury-rigging is likely to confuse consumers into believing they are getting a genuine “Mystic Tan Experience” when they are not. The district court denied the motion on the ground that Sunless had failed to show, at this stage of the litigation, that consumers in Palm Beach’s salons would be confused. We affirm.
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