Professional Documents
Culture Documents
9699
9702 TOYOTA MOTOR SALES v. TABARI
COUNSEL
OPINION
Facts
[9] As for the second and third steps of our nominative fair
use analysis, Toyota suggests that use of the stylized Lexus
10
Toyota doesn’t suggest that the Tabaris used the Lexus mark to refer
to those other cars, or that the Tabaris used the Lexus mark in order to
redirect customers to those cars. See, e.g., Nissan Motor Co. v. Nissan
Computer Corp., 378 F.3d 1002, 1019 (9th Cir. 2004). Everyone seems to
concede the Tabaris are bona fide Lexus brokers. We therefore do not con-
sider whether the Tabaris used the Lexus mark in conjunction with broker-
ing vehicles other than Lexus, or whether such use would be infringing.
TOYOTA MOTOR SALES v. TABARI 9715
mark and “Lexus L” logo was more use of the mark than nec-
essary and suggested sponsorship or endorsement by Toyota.
This is true: The Tabaris could adequately communicate their
message without using the visual trappings of the Lexus
brand. New Kids, 971 F.2d at 308 n.7. Moreover, those visual
cues might lead some consumers to believe they were dealing
with an authorized Toyota affiliate. Imagery, logos and other
visual markers may be particularly significant in cyberspace,
where anyone can convincingly recreate the look and feel of
a luxury brand at minimal expense. It’s hard to duplicate a
Lexus showroom, but it’s easy enough to ape the Lexus site.
[13] The district court found that Toyota waited six months
before contacting the Tabaris after it became aware of their
domain names. The Tabaris point to no evidence that would
justify overturning that finding on appeal. Nor was it an abuse
of discretion to conclude that short delay was reasonable. An
additional delay of two years ensued before Toyota brought
this suit, but during that period the parties were actively seek-
ing to resolve this matter out of court. It was not unreasonable
for Toyota to attempt to avoid the expense and inconvenience
of a lawsuit. See, e.g., E. & J. Gallo Winery, 967 F.2d at
1285, 1294.
Seventh Amendment
Toyota claimed there was no longer any need for a jury trial
because the district court’s bench trial findings constituted the
9720 TOYOTA MOTOR SALES v. TABARI
“law of the case.”12 Of course, this is precisely the result—
forfeiture of the right to trial by jury—that the rule articulated
in Dollar Systems strives to prevent. Id. Because Toyota never
should have been in a position to make such an argument, the
procedure adopted by the district court was error.
***
conduct. But the district court also found that no reasonable jury could
find Toyota liable. The Tabaris’ argument that they were damaged is irrel-
evant in light of this unchallenged holding regarding liability.
9722 TOYOTA MOTOR SALES v. TABARI
separately, however, because I cannot concur in all that is said
by the majority.
First, and principally, I feel compelled to disassociate
myself from statements by the majority which are not sup-
ported by the evidence or by the district court’s findings. I
simply cannot concur in essentially factual statements whose
provenance is our musings rather than the record and determi-
nations by trier of fact. For example, on this record I do not
see the basis for the majority’s assertion that the “relevant
consumer is . . . accustomed to shopping online”;1 or that
“[c]onsumers who use the internet for shopping are generally
quite sophisticated”2 so that they are not likely to be misled;
or that “the worst that can happen is that some consumers
may arrive at [a] site uncertain as to what they will find”;3 or
that, in fact, consumers are agnostic and, again, not likely to
be misled;4 or that “[r]easonable consumers would arrive at
the Tabaris’ site agnostic as to what they would find.”5
Second, I am unable to join the gratuitous slap at counsel
for Toyota in the majority opinion,6 which I see as entirely
unnecessary to our decision or even to the upholding of the
marmoreal surface of the law.
Finally, I do not join the final textual paragraph, which
nudges the district court to find pro bono counsel for the
Tabaris, who have neither chosen to retain their own counsel
nor demonstrated that they cannot do so. To the extent that the
majority sees their activities as especially socially worthy and
above reproach, I do not agree.
Thus, I respectfully concur in the result.
1
Majority opinion, page 9706.
2
Id. at 9709.
3
Id. at 9711.
4
Id. at 9711.
5
Id. at 9715.
6
Id. at 9720 n.12.