1

Attorn Ey, Esq. — Ex # *****

L & A Law Associates, PLC

1234 Final Street

Anyplace, USA 22222-1000

Attorney for Defendant Jolie Artisanal

Vegan Chocolates, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHEASTERN DISTRICT OF WISCONSIN

SCHWANGAU FAMILY CHEESE CO. )

Plaintiff, ) Case No. CV-15-223AD

)

v. )

)

JOLIE ARTISANAL VEGAN )

CHOCOLATES, INC. )

Defendant. )

MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR

PRELIMINARY INJUNCTION

Defendant, Jolie Artisanal Vegan Chocolates, Inc. (“Jolie”), opposes

Plaintiff’s Motion for Preliminary Injunction against its 2011 federally registered

trademark. A preliminary injunction for trademark infringement may be granted

only if the plaintiff has demonstrated a likelihood of success on the merits that its

mark is both (1) protected and (2) likely to cause confusion with the challenged

mark. Plaintiff, Schwangau Family Cheese, Co. (“SFC”), has not shown a

likelihood of either. Congress intended the Lanham (Trademark) Act to “afford

nation-wide protection to federally registered marks.” Burger King of Fla., Inc. v.

Hoots, 403 F.2d 904, 908 (7th Cir. 1968). For this reason, such an injunction is

2

“never to be indulged in except in a case clearly demanding it.” Barbecue Marx,

Inc. v. 551 Ogden, Inc., 235 F.3d 1041, 1044 (7th Cir. 2000). Accordingly, Jolie

requests the Court deny SFC’s Motion for Preliminary Injunction.

I. STATEMENT OF FACTS

On May 1, 2011, the owner of Jolie registered its mark, which included the

slogan “All that matters in the end is chocolate,” with the United States Patent and

Trademark Office. Jolie Dep. Ex. 2. Thirteen days later, May 14, 2011, Jolie began

selling artisanal vegan chocolates in Chicago at farmers’ markets. Hussain Dep. 1.

Jolie went on to sell through an online shop, Etsy, and discontinued selling through

farmers’ markets in 2012. Id. In 2013, Jolie moved online sales from Etsy to its

own website, and in 2014, opened a little brick-and-mortar shop in Chicago. Id. at

2. Until contacted by SFC’s lawyers, the owner of Jolie, Ms. Hussain, had never

heard of SFC or met its owner. Hussain Dep. 12.

The slogan on Jolie’s mark, “All that matters in the end is chocolate,” is

based on a line from Tolstoy, a vegetarian. Hussain Dep. 5. The mark is an oval

shape in portrait orientation, a light green color with black Edwardian script in

cursive and a silhouette on the bottom. Id. at 6. The silhouette is of the Chicago

skyline reflected in Lake Michigan; Chicago is where Jolie is based. Id. The

Tolstoy slogan rests above the skyline with a French translation beneath. Id. The

mark is printed on labels and attached to all of its products. Id. The title of the

3

company, “Jolie Artisanal Vegan Chocolates,” takes up the upper half of the mark

in large font. Jolie Dep. Ex. 1. Ms. Hussain chose the French name, Jolie, because

France is important to her; it is where she “studied cooking and became a chef.”

Hussain Dep. 5.

Jolie’s products range from a two piece $8 set to a thirty-two piece $120 set.

Id. at 3. The vegan chocolates which it sells are considered a “much more

expensive . . . luxury item” compared with a similar vegan chocolate bar market.

Id. at 3-4. Jolie’s chocolates are vegan in that they do not contain milk or “whey—

the byproduct from making cheese—or other animal products.” Id. at 4. Ms.

Hussain estimates that most of Jolie’s sales, 80%, are through its website and 90%

of those are sold seasonally as gifts. Id. at 10. Jolie’s customers are located “all

over the country . . . [in] [e]very metropolitan area.” Id. at 7. Ms. Hussain estimates

that 18% of its sales come from Chicago while only 6% come from southeastern

Wisconsin. Id.

Ms. Hussain has said that she has “no plans to expand Jolie.” Id. at 10. The

only way to buy online is through Jolie’s website, and the only way to buy in-store

is through its shop in Logan Square. Id. at 11. Ms. Hussain promotes Jolie through

her vegan cooking blog, column in Chicago’s “The Reader,” Twitter account,

published vegan cookbooks, and “a regular cooking show on YouTube.” Id. at 7-8.

Ms. Hussain has said that she has no interest in ever selling vegan cheese and that

4

no customer or potential customer has ever asked whether Jolie also sells cheese.

Id. at 11.

SFC sells artisanal cheese. Schwangau Dep. 3. When a web designer asked

to see SFC’s trademark certificate for the Tolstoy slogan it was using in 2014, it

did not have one. Id. at 9. SFC’s registration from 1946 does not list the slogan

“All that matters in the end is cheese.” Id. at 8. Once SFC realized it did not have a

certificate for the slogan, it tried to get one and found out about Jolie’s already

registered slogan “All that matters in the end is chocolate.” Id. at 9. SFC’s owner

claims that in 1946, the slogan by Tolstoy was used by his grandfather and put on a

sign behind a counter in a shop in Wisconsin. Id. at 1-2. The owner says that he

does not know why his grandfather never registered the slogan. Id. at 8.

SFC’s registered “mark is ‘Schwangau Family Cheese’ in old English type

colored red on a white background.” Schwangau Dep. Ex. 2. “Four Year Old

Cheddar Cheese” is below the title. Id. Below that is the address of the source,

“made at and distributed from . . . Wisconsin.” Id. At the bottom in Times New

Roman is the Tolstoy slogan. Id.

SFC’s owner is not sure whether the slogan was used continuously between

1946 and 1975. Schwangau Dep. 3. SFC has owned a website since 2000 which

“doesn’t let people buy cheese through it.” Id. at 5. The website has a photo of a

wooden sign with the Tolstoy slogan engraved on it which the owner says “hangs

5

in the shop.” Id. at 9. SFC’s owner claims that the mark was printed and attached

to its products, and guesses that he saw the labels as early as 1975. Id. at 1-2. There

are no photos on the website of products with the label attached. Id. at 10. SFC also

lost all records, except “accounting type records,” prior to 2011 in a storage facility

fire. Id. at 9.

All of SFC’s sales are made in-store. According to the owner, 15% are

through its shop in Permilia, Wisconsin; 50% through a grocery store chain,

Sentry, also in Wisconsin; and 35% through a grocery store chain, Lunds, in

Minnesota. Id. at 4-5. SFC does not sell in the Chicago area or online. Id. at 5. SFC

promotes its product through a website, a catalog emailed to past customers and

people who request it, and once or twice a year may give an interview to a

magazine reporter or food blogger. Id at 10. There are no seasonal variations or

“significant upticks around any holidays.” Id. at 6. Schwangau cheeses are also on

the higher end in terms of “the cheese market.” Id. at 5. “One pound of cheddar

starts at $10 [and] . . . goes up with aging.” Id. at 6. SFC’s owner also says that no

one has ever asked about vegan chocolate or Jolie Artisanal Vegan Chocolates and

that he had never heard of Jolie before this litigation began. Id. at 7.

II. ARGUMENT

The Court should deny the Motion for Preliminary Injunction for trademark

infringement against Jolie because SFC has no right to the mark and Jolie’s mark is

6

not likely to cause confusion among consumers. In order to prevail on a trademark

infringement claim under the Lanham Act, the plaintiff must show both (1) that its

mark is protected under Lanham Act and (2) that the challenged mark is “likely to

cause confusion among consumers.” CAE, Inc. v. Clean Air Eng’g, Inc., 267 F.3d

660, 673-74 (7th Cir. 2001).

The party seeking preliminary injunction bears the burden of demonstrating:

(1) no other adequate remedy; (2) irreparable harm if the injunction is not granted;

(3) that such harm is greater than the harm of defendant if granted; (4) a likelihood

of success on the merits; and (5) that public interest will not be harmed as a result.

Int’l Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1084 (7th

Cir. 1988). For this Motion, only the fourth element, the likelihood of success on

the merits, is at issue. For trademark infringement, a “preliminary injunction is a

very serious remedy, ‘never to be indulged in except in a case clearly demanding

it.’” Barbecue Marx, Inc. v. 551 Ogden, Inc., 235 F.3d 1041, 1044 (7th Cir. 2000).

Here, Jolie has a federally registered mark. This case is about Congress’

intent to “afford nation-wide protection to federally registered marks.” Burger

King of Fla., Inc. v. Hoots, 403 F.2d 904, 908 (7th Cir. 1968). SFC has not shown

the prior use on goods or services required to establish a protectable right. Even if

a right is found, however, SFC’s use is restricted to the locations where prior use

7

has been shown. Such a right, however, is not at issue here since Jolie’s federally

registered mark is unlikely to cause confusion among consumers.

A. THE COURT SHOULD DENY THE MOTION FOR PRELIMINARY

INJUNCTION BECAUSE SFC LIKELY HAS NO RIGHT TO THE

MARK AND AT BEST A LIMITED ONE.

SFC has not shown the continuous prior use in commerce required to

establish a common law right against Jolie’s 2011 federally registered mark. If a

right was found, however, protection of SFC’s mark would be limited to those

market areas in Wisconsin and Minnesota where prior use was shown.

In a case of trademark infringement, the registered mark grants a right

nationwide against all except a person who can show a common law right through

previous use of the mark. 15 U.S.C. § 1057(c)(1) (2012). Prior use must have been

continuous and in commerce, such as being placed on goods with tags or labels. 15

U.S.C. § 1127 (2012). Prior use is determined by considering “the totality of

circumstances,” and established through “evidence including affidavits, testimony,

and photographs.” Johnny Blastoff, Inc. v. Los Angeles Rams Football Co., 188

F.3d 427, 433-37 (7th Cir. 1999).

If a common law right to a mark is established, it is limited to areas where

prior continuous use has been shown against a federally registered mark. Burger

King, 403 F.2d at 907. “Congress expanded the common law . . . by granting an

exclusive right in commerce to federal registrants in areas where there has been no

8

offsetting use of the mark . . . and that once the certificate has issued, no person

can acquire any additional rights superior to those obtained by the federal

registrant.” Burger King, 403 F.2d at 908. A more recent case stated that if the

court determines that “more than one person is entitled to use [the mark] . . . the

Commissioner [of Patents] should be the one to determine the places of use of the

mark.” Safeway Stores, Inc. v. Safeway Quality Foods, Inc., 433 F.2d 99, 103 (7th

Cir. 1970).

The prior users in Burger King had their rights restricted to “sufficiently

distinct and geographically separate markets” where prior use had been shown

within Illinois. Burger King, 403 F.2d at 909. The defendants had used the mark,

Burger King, in Illinois and registered it under state law prior to plaintiffs’ federal

registration. The court found, however, that the defendants “did not acquire [the]

exclusive right that they would have acquired had they used [the] mark throughout

Illinois prior to plaintiffs’ federal registration.” Id. at 907. The court, therefore,

restricted defendant’s use to areas within Illinois. Id. at 909.

Here, SFC has not shown the prior use required to establish a right to the

mark. Besides the owner’s deposition, SFC offers no photographs, affidavits, or

other testimony to support its claim. In his deposition, the owner claims sales

through its shop and Sentry stores in Wisconsin as well as through Lunds stores in

Minnesota. SFC’s owner also guesses to have seen the mark printed on labels as

9

far back as 1975. Although it is possible that SFC made prior sales in these areas,

the deposition, by itself, is not enough to transform this possibility into a likelihood

on the merits. Also, while SFC has had a picture on its website since 2000 of a

“wooden sign with the slogan engraved on it,” it does not show prior use in

commerce for a trademark on goods; the website does not sell SFC’s products, or

show pictures of the products with the label attached. The self-interested testimony

and website, therefore, do not demonstrate the likelihood of continuous prior use in

commerce required to establish a common law right and injunction against Jolie’s

2011 federally registered mark.

Alternatively, like the senior user in Burger King, if prior use were found,

SFC’s use would be restricted to the market areas where prior use has been shown.

In his deposition, the owner of SFC claims prior use in stores throughout

Wisconsin and Minnesota; however, a fire in 2011 has burned all records prior to

2011. For prior use in Wisconsin, SFC offers testimony of a picture of the mark on

its website. The website does not sell goods or show any of SFC’s products with

the mark attached. Given the serious nature of a preliminary injunction, the Court,

at most, should only restrict Jolie’s use of the mark within the parts of Wisconsin

and Minnesota where it or the Commissioner finds, on the merits, that SFC has

shown a likelihood of prior use. Expansion beyond these locations would go

against Congress’s intent to afford nation-wide protection to the federal registrant.

10

At most, SFC has limited rights.

SFC, therefore, has no right to the mark because it has not shown prior use.

If the Court determines that prior use has been shown, SFC is limited to Wisconsin

and possibly Minnesota depending on how the Court or Commissioner weighs the

deposition offered by the owner of SFC. Given the serious nature of this Motion,

SFC has failed to meet its burden of showing a likelihood of success on the merits

and that this case “clearly demands it.”

B. THE COURT SHOULD DENY THE MOTION FOR PRELIMINARY

INJUNCTION BECAUSE THE CHALLENGED MARK IS NOT

LIKELY TO CAUSE CONFUSION AMONG CONSUMERS.

SFC cannot show that the challenged mark is likely to cause confusion

among consumers because the mark, its use, the product, and the heightened

degree of consumer care all serve to distinguish Jolie’s mark from SFC’s. In order

to prevail on a claim for trademark infringement, it is incumbent on the plaintiff to

prove that the challenged mark is likely to cause confusion among consumers.

Burger King, 403 F.2d at 908.

Under the Lanham Act, “seven factors comprise a likelihood of confusion

analysis,” four of which are relevant and disputed in this case: “(1) the similarity

between the marks in appearance and suggestion; (2) the similarity of the products;

(3) the area and manner of concurrent use; [and the] (4) degree of care likely to be

exercised by consumers.” AutoZone, Inc. v. Strick, 543 F.3d 923, 929 (7th Cir.

11

2008). The parties have stipulated to the remaining three: “(5) strength of

plaintiff’s mark; (6) any actual confusion; and (7) the intent of the defendant to

‘palm off’ his product as that of another.” Id. Of the relevant factors, the similarity

between the marks is the most important. Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891,

898 (7th Cir. 2001).

1. The challenged mark is not likely to cause confusion among consumers

because the marks are dissimilar in appearance and suggestion.

The commercial impressions of the two marks, viewed in their entirety and

in light of their salient portions, are unlikely to cause consumer confusion.

The similarity in appearance and suggestion is derived from considering the

mark “as a whole, not from its elements separated and considered in detail.”

AutoZone, 543 F.3d at 929-30. A mark causes confusion if “the viewer of the

challenged mark would be likely to associate the product with which it is

connected with the source of the challenged mark.” AutoZone, 543 F.3d at 930.

Also, if “one word or feature of a composite trademark is the salient portion of the

mark, it may be given greater weight than the surrounding elements.” Ty, Inc. 237

F.3d at 898.

The court in AutoZone, compared the marks by looking at their overall

impression in the marketplace. AutoZone, 543 F.3d at 931. The court looked at

both the similarities and dissimilarities in comparing the OilZone mark with the

AutoZone mark. Id. at 930. Besides using “Zone” as the second word for their

12

marks, both had the same font, directional slant, bar design suggesting movement,

and the “first letter of both words [was] larger than the others letters.” Id. The

marks were dissimilar in that “they [were] usually portrayed in different colors . . .

the bar designs [ran] in different directions, and the first words [were] different.”

Id. The court looked at the fonts, their slant, size, and relationship to the rest of the

mark, as well as color and all of the shared and non-shared elements of the mark in

the context of what occurs in the marketplace and determined that “a consumer

cruising down the street” would believe that OilZone represented AutoZone’s

entry into other markets. Id. The court ruled, therefore, that consumers could be

likely to confuse the marks. Id. at 935.

It is “inappropriate to focus on minor stylistic differences . . . if the public

does not encounter the two marks together.” Ty, Inc., 237 F.3d at 898. Instead, the

more salient portion of the mark gets “greater weight than the surrounding

elements. Id. When determining confusion, “the comparison should be made ‘in

light of what happens in the marketplace,’ [and] not merely by looking at the two

marks side-by-side.” Id. The court in Ty, Inc. reasoned that even though placing

Beanie Racers and Beanie Babies side-by-side may reveal minor dissimilarities,

consumers were unlikely to do so. Id. at 899. Because the “word ‘Beanie’ was a

well-known and famous part of the Ty mark,” the court rendered it “the more

salient portion of the mark” and found a likelihood of confusion. Id.

13

Unlike the marks in AutoZone, the marks in this case create an overall

different impression in the marketplace. While the marks in AutoZone shared

company titles, the marks in this case share only part of a slogan borrowed from

Tolstoy, “All that matters in the end,” which sits underneath their company titles:

“Jolie Artisanal Vegan Chocolates” and “Schwangau Family Cheese.” Both

slogans end respectively with cheese or chocolate. Also, unlike the marks’

similarities in AutoZone, the marks in this case are dissimilar in font size, slant,

color, and relation to the rest of the mark. SFC’s mark has no portrait, the title is in

“old English type colored red on a white background,” not slanted. Following

below the title is the phrase “four year old cheddar cheese” and “made at and

distributed from . . . Wisconsin” below that. The slogan is on the bottom in Times

New Roman font, not bolded or slanted. Alternatively, Jolie’s mark has a green

oval portrait with black font slanted in bold Edwardian cursive. Below Jolie’s title

is the slogan with a French translation and a mirror image of the Chicago skyline

beneath. The marks create an overall different impression in the marketplace.

Unlike the marks in Ty, Inc., the salient portions of the mark are not similar

and the stylistic differences are not minor. The companies’ distinct titles, in larger

font at the top of the mark, are the salient portions because they are more

noticeable and important than the “All that matters in the end” slogan in smaller

font at the bottom. Although customers are not likely to hold the products up side-

14

by-side, the stylistic differences are enough to distinguish the source of products in

the context of the marketplace: a white and red label with a Wisconsin address in

Old English Font attached to a block of cheese is noticeably different than a green

and black label, oval shaped, in English and French Edwardian cursive with the

Chicago Skyline attached to a box of chocolates. Even if, like the marks in Ty, Inc.,

the slogan was the more memorable salient portion, it is unlikely that a consumer

would associate famous quotes styled, positioned, colored, and translated

differently as these are as coming from the same source, especially considering the

source references for Chicago and Wisconsin on each mark. Consumers will not be

confused.

The dissimilarities in the salient portions of the marks, along with the sum of

the marks’ elements, distinguishes their source in a way that consumers would be

unlikely to associate the products with which they are connected as being from the

same source.

2. The challenged mark is not likely to cause confusion among consumers

because the products with which the marks are associated are dissimilar.

It is unlikely that the marks will cause confusion among consumers because

vegan chocolate is not closely related to cheese, and consumers are unlikely to

expect product expansion by either source.

The similarity of the products is determined by “whether the public is likely

to attribute the products . . . to a single source.” CAE, 267 F.3d at 679. Courts

15

consider (1) the relatedness of current products and (2) consumers’ expectations

regarding product expansion. CAE, 267 F.3d at 679-81. This factor weighs heavily

in favor of injunctive relief if “it appears extremely likely . . . that the trademark

owner will soon enter the defendant’s field.” Sands, Taylor & Wood Co. v. Quaker

Oats Co., 978 F.2d 947, 958 (7th Cir. 1992).

The CAE court found products were closely-related when there were general

and specific similarities, as well as a reasonable consumer expectation that a source

would expand. CAE, 267 F.3d at 680. General and specific similarities between the

parties included marketing “systems for monitoring air quality and emissions” and

developing software for stack emissions. Id. Consumers may have also expected

the senior user to expand “its business to offer the same products” because both

parties were in the same air pollution business and marketed to companies subject

to environmental regulations. Id. at 681. Both product relation and expectations of

expansion showed a likelihood of confusion given the products’ similarities. Id. at

687.

Unlike the products’ similarities in CAE, the vegan chocolates produced by

Jolie and the cheese produced by SFC are dissimilar. While chocolate and cheese

are both artisanal foods, it is the only general product similarity. There are no

specific similarities such as the use of milk or animal products. Unlike the

expectation of expansion in CAE, it is unlikely that SFC will actually expand or be

16

expected by consumers to expand since it has not done so in nearly 100 years of

making cheese. The owner of Jolie has also said that there are “no plans to expand

Jolie.”

It is, therefore, unlikely that consumers would confuse the sources because

cheese is not closely related to vegan chocolate and consumers have no reason to

expect product expansion from either source. This factor also weighs lightly since

there is no likelihood of expansion given SFC’s history and the testimony of Jolie’s

owner.

3. The challenged mark is not likely to cause confusion among consumers

because the marks are dissimilar in their areas and manners of use.

It is unlikely that Jolie’s mark will cause confusion because the seasonal use

of products, mediums of promotion, and sale and distribution methods between the

parties are sufficiently unrelated.

The area and manner of concurrent use is determined by “whether there is a

relationship in the use, promotion, distribution, or sales between the goods of the

parties.” Forum Corp. of N. Am. v. Forum, Ltd., 903 F.2d 434, 442 (7th Cir. 1990).

The parties in Forum did not “advertise in the same publications or attend the same

trade shows,” however, they did “share a number of clients and marketing

methods,” including sending mail directly to the same clients. Id.at 441-42. Since

there was only “one way in which the parties’ marketing differed,” the court found

that the overlap in markets was likely to cause confusion. Id.

17

Unlike the parties in Forum, there is more than one way in which the

marketing of SFC and Jolie differ. In this case, the use, promotion, distribution,

and sales between the goods of the parties are different. For use, Jolie’s chocolates

are used primarily as seasonal gifts while SFC’s are used regularly throughout the

year. For distribution and sales in Wisconsin and Minnesota, the only way to buy

SFC’s cheese is in store and the only way to buy Jolie’s vegan chocolate is online.

100% of SFC’s sales are made in-store in Wisconsin and Minnesota, while 80% of

Jolie’s are made online with the remaining 20% sold through Jolie’s store in

Chicago. Even though Jolie’s customers are located “in every metropolitan area,”

only 6% of sales are from southeastern Wisconsin. For promotion, SFC takes a

more traditional approach; the owner may be interviewed twice a year by a

magazine reporter or food blogger and sends catalogs only to previous customers

and those who ask for it. Jolie, however, takes a more tech-savvy approach by

marketing through Ms. Hussain’s blog, cookbooks, journal publishing, and twitter

and YouTube accounts. These different marketing areas and uses distinguish the

marks from one another.

The dissimilarities in the seasonal use, in-store distribution, regional sales,

and online promotion between Jolie and SFC make it unlikely that the marks will

be confused by consumers.

18

4. The challenged mark is not likely to cause confusion among consumers

because customers of both marks’ products are likely to exercise a

heightened degree of care.

Consumers are likely to use a heightened degree of care and unlikely to be

confused by the marks because the products are expensive and access is limited.

For the degree of care likely to be exercised by consumers, “the more widely

accessible and inexpensive the products, the more likely consumers will exercise a

lesser degree of care.” CAE, 267 F.3d at 683.

The court in CAE found that consumers were unlikely to exercise a

heightened degree of care where parties sold inexpensive and widely accessible

products to overlapping clientele. Id. at 684. The products ranged “from $1.75 to

$11,150” and were targeted to the same “pharmaceutical and surface coating”

industries. Id. at 671. Both parties also used “appearances at trade shows and

conferences” for marketing. Id. at 682. Products were available online and through

catalogs. Id. at 669. The court found that the widespread access to inexpensive

products for overlapping clientele made it so that “consumer sophistication did not

diminish the likelihood of confusion.” Id. at 684.

Unlike the consumers in CAE, consumers in this case are likely to use a

heightened degree of care because the products are expensive and access is limited.

Jolie and SFC sell high-end, luxury products. Jolie sells vegan chocolates ranging

from a two piece $8 set to a thirty-two piece $120 set, whereas SFC produces non-

19

vegan cheese ranging from $10 per pound and more with aging. Even consumers

with disposable incomes are unlikely to confuse the items since the products are

considered expensive in their relative markets. Unlike the overlapping of clientele

and targeting of the same specific audiences in CAE, Jolie primarily targets an

online vegan audience with seasonal gifts while SFC targets an in-store audience

for regular purchase. There is no indication that the parties have overlapping

clientele; neither party has heard of or been asked about the others product. Access

to SFC’s product is also limited in that all of its sales are in-store, and none are

made in Chicago. Jolie’s product is limited in that, unless you buy it from its shop

in Chicago, all of its sales are made online.

Consumers, therefore, will exercise greater care and discrimination in their

purchases between the different products because the products are expensive,

access is limited, and different audiences are targeted.

Weighing the above factors, the Court should deny the Motion for

Preliminary Injunction because there is no likelihood of confusion about the source

of marks’ products in the minds of consumers.

III. CONCLUSION

For the foregoing reasons, Jolie respectfully requests that this Court deny the

Motion for Preliminary Injunction.

20

Respectfully submitted this 20th day of April, 2015.

JOLIE ARTISANAL VEGAN CHOCOLATES, INC.

By its attorney

Attorn Ey - *****____________

Attorn Ey, Esq. — Exam # *****

L & A Law Associates, PLC

1234 Final Street

Anyplace, USA 22222-1000

520-999-4444

I certify that I served 2 copies of this Memorandum

in Opposition to the Plaintiff’s Motion for Preliminary

Injunction on the parties listed below this 20th day

of April, 2015.

Attorn Ey *****__________

Original plus one copy by hand-delivery:

Jon W. Sanfilippo

Clerk of Court

District Court of Southeastern Wisconsin

333 Fourth Avenue

Big Town, Milwaukee 99999

AND one copy by first-class mail:

Andrea Keys

222 Fourth Street

Big Town, Milwaukee 99999