Reliant Capital Solutions, LLC v. Ram Payment, LLC
ORDER denying 5 Motion for Preliminary Injunction. Signed by Chief Judge Algenon L. Marbley on 11/18/2022. (cw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
RELIANT CAPITAL SOLUTIONS, LLC,
RAM PAYMENT, LLC
Case No. 2:22-cv-3047
Chief Judge Algenon L. Marbley
Magistrate Judge Kimberly A. Jolson
OPINION & ORDER
This matter is before the Court on Plaintiff’s Motion for a Preliminary Injunction. (ECF
No. 5). This Court held a Preliminary Injunction hearing on September 20, 2022. For the reasons
that follow, Plaintiff’s Motion for a Preliminary Injunction (ECF No. 5) is DENIED.
A. Factual Background
Plaintiff Reliant Capital Solutions, LLC (“Reliant” or “Plaintiff”) is an Ohio limited
liability company with its principal place of business in Gahanna, Ohio. (ECF No. 1 at ¶ 4). Since
2007, Plaintiff has provided accounts receivable management services under the RELIANT mark.
(Id., ¶ 15). In 2017, Plaintiff received federal registration for the mark RELIANT CAPITAL
SOLUTIONS, LLC from the U.S. Patent and Trademark Office (“USPTO”), which covers the
services “debt collection; debt recovery and collection agencies” and identifies the first use in
commerce as January 23, 2007. (Id., ¶ 19–21). Plaintiff conducts business online and maintains a
website at www.reliantcapitalsolutions.com, as well as advertising on Facebook, LinkedIn, and at
various industry trade shows. (Id., ¶¶ 30–33). Plaintiff utilizes RELIANT in conjunction with its
provision of the RELIANT services in different ways, including as part of the logos shown below:
(ECF No. 1 at ¶ 27).
Defendant Ram Payment, LLC (“RAM”) is an independent account management and
payment processing company which acts as a neutral intermediary, capable of providing payment
processing services to clients in several industries. (ECF No. 15 at 2). In 2019, Defendant acquired
trademark intellectual property assets from Reliant Account Management, which had provided the
same services as Defendant for roughly 10 years. (Id. at 3). After the acquisition of its assets by
Ram Payment, LLC, Reliant Account Management LLC, changed its name to Account
Management Systems, LLC. (ECF No. 16, ¶ 6). In mid-2019, the Consumer Financial Protection
Bureau (“CFPB”) began investigating Account Management Systems, LLC, based on actions
taken by its previous owners. (Id., ¶ 14). The CFPB investigation ultimately found fault and
ordered Defendant and other respondents jointly and severally liable for over $8M in redress. (ECF
No. 1 at ¶ 64). As of 2021, all individuals responsible for the actions identified by CFPB are no
longer with the company. (ECF No. 15 at 3).
In April 2021, after engaging a creative firm to help redesign its website and logo,
Defendant rebranded itself to Reliant and filed a U.S. Trademark Application for the mark
RELIANT in connection with the following logo:
(ECF No. 15 at 4). As comparison, Defendant’s previous logo included the following mark:
(ECF No. 1, ¶ 45). Defendant has applied to the USPTO to register: (1) the word “Reliant”; and
(2) “Reliant” with the ram’s head logo. (ECF No. 15 at 4). In and around July 2021, Plaintiff sent
a demand letter to Defendant alleging that “[a]tual confusion has occurred as a result of
Defendant’s rebranding and present use of RELIANT.” (ECF No. 1 ¶ 59). One specific incident
allegedly involved Plaintiff’s actual and prospective customers mistakenly believing that an
employee of Defendant was employed by Plaintiff. (Id., ¶ 60). Upon receiving the letter from
Plaintiff’s counsel, Defendant requested that Plaintiff furnish details of this alleged confusion.
(ECF No. 15 at 4). While Plaintiff did send some additional correspondence, Defendant was
unsatisfied with this response and deemed the matter closed. (Id.). In September 2021, Plaintiff’s
counsel sent a letter reiterating its previous position, which Defendant alleges contained no further
details of the confusion. (Id. at 5–6). Ten months passed with no communication between the
parties, during which the USPTO approved Defendant’s applications for word “Reliant” and
“Reliant” in the ram’s head logo. (Id. at 5). Three months later, in May 2022, Plaintiff filed a notice
of opposition to Defendant’s trademark application, and the parties engaged in an initial
conference, where settlement was discussed. (Id.).
On August 5, 2022, Plaintiff filed suit alleging irreparable harm if Defendant continues to
use the RELIANT brand. (ECF No. 1 at ¶ 69). Plaintiff asserts claims for trademark infringement,
unfair competition as well as violations of the Ohio Deceptive Trade Practices Act. (See generally
id.). Along with its Complaint, Plaintiff filed a Motion for a Preliminary Injunction requesting this
Court enjoin Defendant from using Plaintiff’s RELIANT mark anywhere in the United States in
connection with any type of account management and payment processing services. (ECF No. 5
After Plaintiff filed its Motion for a Preliminary Injunction, this Court held an informal
preliminary conference with the parties pursuant to S.D. Ohio Civ. R. 65.1. (ECF No. 14). At that
conference, this Court set a briefing schedule on Plaintiff’s Motion as well as scheduled a hearing
date. (Id.). Pursuant to that Order, on August 29, 2022, Defendants responded to Plaintiff’s Motion
(ECF No. 15) and answered Plaintiff’s Complaint (ECF No. 19). As Plaintiff timely replied (ECF
No. 21) and the Preliminary Injunction hearing was held (ECF No. 28), the Motion for a
Preliminary Injunction is now ripe for review.
B. Preliminary Injunction Hearing
At the hearing, Plaintiff testified that Defendant rebranded in April 2021 after coming
under investigation by the CFPB in 2019. (ECF No. 28 at 11: 4–14). Since that time, Plaintiff
alleged that there had been several instances of confusion between Reliant and RAM among their
customers and staff. (ECF No. 28 at 59:10–16). For example, one of their clients called to
congratulate them on hiring an individual who had actually been hired by Defendant. (Id.)
Plaintiff, however, did testify that they could not provide evidence that they had lost customers
because of confusion between Plaintiff and Defendant’s use of RELIANT. (Id. at 150:18-151:5).
They explained that given the process through which Plaintiff receives most of its contracts, they
would be unable ever to know if confusion between them and Defendant played a role in their
winning or losing a bid. (Id. at 156:17–158:3).
Conversely, Defendant argued that there was no likelihood of confusion between the
parties because they were sufficiently different. Defendant presented evidence that it is a
payment processor for debt settlement companies who “simply moves money upon instructions
to do so.” (ECF No. 28 at 15:19–24). Defendant asserts that debt settlement companies work for
consumers to negotiate payment plans with the creditors, but they do not market to consumers
nor creditors. (Id. at 15:22–16:3; 216:19–217:5). Further, in their post-hearing briefs, Defendant
points to Plaintiff’s testimony that Reliant does not consider itself just a payment processing firm
and that Plaintiff does not consider Defendant to be a third-party debt collector. (ECF No. 28 at
47:21–48:2; 81:5–8). Because of these factors and limited instances of confusion, Defendant
argues that an injunction is inappropriate here. (ECF No. 15 at 20).
II. LEGAL STANDARD
In determining whether a preliminary injunction is warranted, the Court considers four
factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the
movant would suffer irreparable injury without the injunction; (3) whether issuance of the
injunction would cause substantial harm to others; and (4) whether the public interest would be
served by the issuance of the injunction.” Ne. Ohio Coal. for the Homeless v. Husted, 696 F.3d
580, 590–91 (6th Cir. 2012). While a strong likelihood of success is the crucial factor, all four
must be balanced rather than treated as prerequisites. McPherson v. Mich. High Sch. Athletic Ass’n,
Inc., 119 F.3d 453, 459 (6th Cir. 1997). Irreparable harm is nearly as crucial as the success factor:
It is well settled that “[o]ur frequently reiterated standard requires plaintiffs seeking preliminary
relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 22–24 (2008).
Preliminary injunctions are a discretionary remedy intended “to maintain ‘the status quo’
until the resolution of the case ‘on its merits.’” Adams v. Baker, 951 F.3d 428, 429 (6th Cir. 2020)
(quoting Burniac v. Wells Fargo Bank, N.A., 810 F.3d 429, 435 (6th Cir. 2016)). Like the
temporary restraining order, “the preliminary injunction is an extraordinary remedy involving the
exercise of a very far-reaching power, which is to be applied only in limited circumstances which
clearly demand it.” Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000) (internal quotation
marks omitted). Any preliminary injunction must be stated in specific terms, describe in reasonable
detail the act or acts to be restrained, and give the reasons for its issuance. Fed. R. Civ. P. 65(d).
Moreover, “it should be tailored to restrain no more than what is reasonably required to accomplish
its ends.” Stenberg v. Cheker Oil Co., 573 F.2d 921, 924 (6th Cir. 1978).
A plaintiff need not “establish his right to an injunction wholly without doubt,” Id. (internal
quotation marks omitted); nor “prove his case in full.” Certified Restoration Dry Cleaning
Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 543 (6th Cir. 2007) (quoting Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981)). To that end, “[i]t is ordinarily sufficient if the plaintiff has
raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them
a fair ground for litigation and thus for more deliberate investigation.” Six Clinics Holding Corp.,
II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997).
III. LAW & ANALYSIS
A. Likelihood of Success on the Merits
Plaintiff asserts a claim of trademark infringement under 15 U.S.C. §§ 1114. It is well
settled that “[t]he touchstone of liability under § 1114 is whether the defendant’s use of the
disputed mark is likely to cause confusion among consumers regarding the origin of the goods
offered by the parties.” Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Center,
109 F.3d 275, 280 (6th Cir. 1997). The Sixth Circuit has adopted an eight-factor test for
determining likelihood of confusion: “‘(1) strength of the plaintiff’s mark; (2) relatedness of the
goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used;
(6) likely degree of purchaser care; (7) defendant’s intent in selecting the mark; [and] (8) likelihood
of expansion of the product lines.’” Frisch’s Restaurants, Inc. v. Elby’s Big Boy of Steubenville,
Inc., 670 F.2d 642, 648 (6th Cir. 1982) (“Frisch’s I”) (quoting Toho Co., Ltd. v. Sears, Roebuck &
Co., 645 F.2d 788 (9th Cir. 1981)).
1. Strength of Plaintiff’s Mark
Plaintiff maintains that its mark is both conceptually and commercially strong, as it
“suggests to [consumers] that Plaintiff is dependable, and someone they can rely upon to assist
them with their account receivable management needs.” (ECF No. 5 at 10). Further, the mark is
deserving of a broad scope of protection (Kimber v. Hall, 843 F.3d 1068, 1073 (6th Cir. 2016))
because it is suggestive of their business and history of prominence in the industry. (ECF No. 30
at 3). Even though RELIANT is used by other businesses in the industry, Plaintiff argues that they
can still enforce their rights against Defendant. (Id. at 3–4).
Defendant, meanwhile, argues that Plaintiff’s mark is not sufficiently “well known,” as
there are many coexisting marks on the federal trademark register in the financial services industry
that include the term Reliant, including some specifically for the debt collection services that
Plaintiff offers. (ECF Nos. 15 at 7–8; 29 at 4; 32 at 2)). Defendant cites to the hearing transcript
for examples of other companies who use RELIANT which Plaintiff knew of and admitted offered
debt collection services like Plaintiff. (ECF Nos. 29 at 4–5; 28 at 95:12–97:1). Further Defendant
points to evidence that Plaintiff consented to “the coexistence of incredibly similar marks” in a
blue and green color scheme in an agreement with Reliant Bank, who also offers debt collection
services. (ECF Nos. 29 at 5–6; 32 at 3). Plaintiff counters that Defendant’s assertion that other
companies provide identical services to Plaintiff is false. (ECF No. 31 at 4–5). For example,
Plaintiff asserts that there is no evidence that Reliant Bank offers debt collection services “for the
benefit of others.” (Id. at 4).
To evaluate the strength factor under Frisch’s I, this Court “focuses on the distinctiveness
of a mark and its recognition among the public.” Therma–Scan, Inc. v. Thermoscan, Inc., 295 F.3d
623, 631 (6th Cir. 2002). The fact that a mark has been registered for five or more years is not the
end of the inquiry, “[b]ecause the strength of a trademark for purposes of the likelihood-ofconfusion analysis depends on the interplay between conceptual and commercial strength,”
Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., 679 F.3d 410, 419 (6th Cir. 2012).
This Court finds that Plaintiff’s mark is commercially strong. Plaintiff has been using the
mark in commerce for fifteen years and the USPTO granted Plaintiff a federal registration for
RELIANT CAPITAL SOLUTIONS, LLC in February 2017 in connection with “debt collection;
debt recovery and collection agencies.” (ECF Nos. 5 at 10; 28 at 83:17–84:5). And, while “the
actual strength of the mark cannot and should not be definitively determined at this stage in the
matter[,]” the testimony presented and materials produced do demonstrate Plaintiff has taken steps
to develop and control the mark and its exclusive right to it. Hotel California, Inc., 106 F. Supp.
3d 899, 906 (N.D. Ohio 2015). As such, Plaintiff’s actual use and licensing of the mark, coupled
with the absence of a successful challenge to their registration, suggest a degree of strength. Id.
(citing Daddy’s Junky Music Stores, 109 F.3d at 282).
This Court does note, however, that Defendant and its predecessor-in-interest, have
collectively been utilizing their mark for at least twelve years. (ECF No. 15 at 8). This Court further
finds, however, that Plaintiff’s mark is not conceptually strong. This is because the term itself is
in common use and there are also several coexisting marks in the financial services industry that
include the term. (ECF No. 29 at 4–5); See also Homeowners Grp. v. Home Mktg. Specialists, Inc.,
931 F.2d 1100, 1108 (6th Cir. 1991) (recognizing that third-party use of a mark may substantially
weaken the strength of a mark); WLWC Centers, Inc. v. Winners Corp., 563 F. Supp. 717, 722
(M.D. Tenn. 1983) (finding a mark was weak where, among other things, it consisted of a word
that was in common use).
Accordingly, as this Court only finds Plaintiff’s mark commercially strong and not
conceptually strong, this factor only weighs slightly in favor of a likelihood of confusion.
2. Relatedness of the Services
Plaintiff argues that the parties’ services are overlapping, or at the very least related. (ECF
No. 5 at 11–13). According to Plaintiff, both parties “operate in the account management industry,
both work to resolve debts owed by consumers, and both perform payment processing services,
including the services recited in Defendant’s trademark applications before the USPTO.” (Id. at
13; ECF No. 30 at 5–7). Although Defendant distinguishes between its indirect work with
consumers through debt settlement companies, Plaintiff alleges that the type of customer is
irrelevant to Defendants main function—“facilitate payment by consumers/debtors.” (ECF Nos.
30 at 6; 31 at 1-2 (citing NetsJets Inc. v. IntelliJet Grp., LLC, 678 Fed. App’x 343, 352 (6th Cir.
2017 (the issue is not whether services will be confused, but if there is confusion about their
source)). Further, Plaintiff asserts that: (1) they attend the same conference as Defendant with
similar clients; and (2) Defendant hired an executive with a history of common clients with
Plaintiff. (ECF No. 30 at 6).
Conversely, Defendant maintains that its service is sufficiently different from Plaintiff’s
because it serves as a financial custodian providing payment transmission services, while Plaintiff
represents creditors, purchases debt owed thereto, and seeks to compel debtholders to settle and
compromise those accounts. (ECF Nos. 15 at 8; 29 at 6–7). Defendant asserts that it must remain
independent because it is a financial custodian under the Telemarketing Sales Rule and cannot
“offer debt collection services.” (ECF No. 29 at 7). Second, Defendant rejects Plaintiff’s assertion
that it competes for business because it attended the same conference, as the conference attendees
included companies that did not compete with Plaintiff. (ECF No. 32 at 4). Finally, Defendant’s
use of the word RELIANT was approved for “financial services, namely, electronic funds transfer
via electronic communications network,” while Plaintiff’s registration of RELIANT CAPITAL
SOLUTIONS, LLC covers “debt collection; debt recovery and collection agencies.” (ECF No. 29
The Sixth Circuit has developed “three benchmarks regarding the relatedness of parties’
goods and services.” Kellogg Co. v. Toucan Golf, Inc., 337 F.3d 616, 624 (6th Cir. 2003).
First, if the parties compete directly by offering their goods or services, confusion
is likely if the marks are sufficiently similar; second, if the goods or services are
somewhat related but not competitive, the likelihood of confusion will turn on other
factors; third, if the goods or services are totally unrelated, confusion is unlikely.
Daddy’s Junky Music Stores, 109 F.3d at 282. Importantly, “[s]ervices are ‘related’ not because
they coexist in the same broad industry but are ‘related’ if the services are marketed and consumed
such that buyers are likely to believe that the services, similarly marked, come from the same
source, or are  connected with or sponsored by a common company.” Homeowners Grp., 931
F.2d at 1109.
Here, this Court finds that “any commonality between [Plaintiff’s] services and [those
offered by Defendant] is insufficient to establish that their [services] are related for the purpose of
determining whether a likelihood of confusion exists.” Therma-Scan, Inc., 295 F.3d at 636. While
the parties operate within the same space––debt collection and payment––they preform different
functions within that space. Among other services, Plaintiff collects money on behalf of creditors,
while Defendant is an independent payment processor that provides technical services on behalf
of debt settlement companies once an agreement is reached between the creditor and debtor. (ECF
Nos. 1 ¶ 16; 29 at 6-7). As such, their services are “somewhat related but not competitive[,]” and
the likelihood of confusion turns on other factors. Daddy’s Junky Music Stores, 109 F.3d at 282.
3. Similarity of the Marks
Plaintiff argues that the parties’ marks are identical. (ECF No. 5 at 14). And, although
Plaintiff may present its mark with additional descriptive and/or non-distinctive wording, it
maintains RELIANT is the prominent and distinctive part of its branding. (Id.; ECF No. 30 at 8–
9). Further, Plaintiff alleges that Defendant’s trademark application sought to protect the word
RELIANT by itself and did not include color in its logo, which represents a different story than
told during the preliminary injunction hearing. (ECF No. 30 at 8). Finally, and regardless of the
difference in color, the primary brand is the word RELIANT, which Plaintiff argues should be
weighed more heavily than the design of the logo alone. (Id. at 9).
Defendant maintains that the two marks are substantially different, particularly considering
that it uses RELIANT with a different logo from Plaintiff’s; Defendant’s red and white ram’s head
differs substantially from Plaintiff’s green orbital logo. (ECF No. 15 at 10). Defendant alleges that
Plaintiff’s logo more closely resembles another company’s (Reliant Bank) logo with whom the
Plaintiff has a coexistence agreement, but which also uses the word RELIANT and a green and
blue circles. (ECF No. 28 at 106:1–6; 207:1–12). Plaintiff asserts, however, that it is distinguished
from Reliant Bank which collects money in a different capacity than Plaintiff because there is no
evidence that they collect debt for the benefit of others. (ECF No. 31 at 4). Second, Plaintiff does
not have a USPTO registration for the word RELIANT alone, while Defendant does. (ECF No. 29
at 8). Finally, the USPTO allowed Defendant’s application for RELIANT, despite the existence of
Plaintiff’s logo. (ECF No. 32 at 5).
It is well settled that “[s]imilarity of the marks is a factor of considerable weight.” Daddy’s
Junky Music Stores, 109 F.3d at 283. When evaluating this factor, courts must consider
“pronunciation, appearance, and verbal translation of conflicting marks.” Champions Golf Club
Inc. v. The Champions Gold Club, Inc., 78 F.3d 1111, 1118 (6th Cir. 1996). In addition, “courts
must determine whether a given mark would confuse the public when viewed alone, in order to
account for the possibility that sufficiently similar marks may confuse consumers who do not have
both marks before them but who may have a general, vague, or even hazy, impression or
recollection’ of the other party’s mark.” Daddy’s Junky Music Stores, 109 F.3d at 283 (internal
The parties’ marks are quite similar, particularly given that each emphasizes the term
“Reliant.” Each mark, however, does contain additional details that do differentiate them from one
another. Specifically, Plaintiff’s mark includes the words “capital solutions” as well as a green
orbital logo, while Defendant’s contains a distinctive ram’s head figure. (ECF Nos. 5 at 3–4; 15 at
10). These kinds of differences, however, “relate to the marks’ ‘individual features’ rather than
their ‘overall impression.’” Therma-Scan, Inc., 295 F.3d at 633–34 (6th Cir. 2002). Based upon
these considerations, this Court finds that an average consumer might be unable to recall which
trademark identifies Plaintiff’s services as opposed to Defendant’s. The similarity of the marks
thus increases the likelihood of confusion, although the presence of the ram’s head figure in
Defendant’s mark decreases the significance and strength of this factor.
4. Evidence of Actual Confusion
Plaintiff presents three categories of actual confusion: (1) a third party tagged Plaintiff in
a social media post about Defendant; (2) Plaintiff received phone calls from clients and their own
employees inquiring about Plaintiff’s decision to hire an executive who had actually been hired by
Defendant; and (3) Plaintiff received at least one inquiry from a customer about the CFPB
enforcement proceeding against Defendant and was confused about whether Plaintiff was the one
involved. (ECF Nos. 5 at 15; 30 at 10). Plaintiff argues that these examples of confusion are
persuasive, because the likelihood of confusion analysis should not be limited to confusion
amongst purchasers, but should include other, casual observers. Ferrari S.P.A. v. Roberts, 944
F.2d 1235, 1245 (6th Cir. 1991). Defendant argues that the law does not recognize these instances
as sufficient evidence of actual confusion. (ECF No. 15 at 10–12). Moreover, Defendant asserts
that these instances “are not a considerable quantum of evidence of actual confusion, and minimal
or isolated instances of actual confusion are . . . less probative than a showing of substantial actual
confusion.” (Id. at 11) (internal quotations omitted). Defendant highlights that the social media
post was an isolated incident that happened in April 2021, constitutes stale evidence, and fails to
demonstrate that the tag was intentional. (ECF Nos. 29 at 10; 32 at 6). Further, the email inquiring
about the CFPB proceedings specifically expressed the belief that Plaintiff was not involved but
was writing to confirm. (ECF No. 29 at 10). Defendant asserts that inquiries about a logo do not
amount to actual confusion. Id. (citing Nora Beverages, Inc. v. Perrier Grp. Of Am., Inc., 269 F.3d
114,124 (2d Cir. 2001)).
While “[e]vidence of actual confusion is undoubtedly the best evidence of likelihood of
confusion,” it does “not follow that lack of evidence of actual confusion should be a significant
factor . . . .” Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1188 (6th Cir. 1988). “The existence of only
a handful of instances of actual confusion after a significant time or a significant degree of
concurrent sales under the respective marks, [however,] may even lead to an inference than no
likelihood of confusion exists.” Homeowners Grp., 931 F.2d at 1110.
Plaintiff’s evidence of actual confusion resembles the testimony of 18 consumer witnesses
in Jewel Companies, Inc. v. The Westhall Company, 413 F. Supp. 994 (N.D. Ohio 1976). In Jewel,
the court discounted the consumer statements noting:
Their statements indicated that they “thought” that there “might” be a relationship
between the two [or] they “assumed” that there was a relationship . . . This is a very
weak degree of confusion. The strongest confusion would have been that which
resulted in a customer going to Jewel Mart and making a purchase because the
customer thought the store was operated by Jewel Tea.
Id. at 999. Although the customer and employee inquiries and social media post establish at least
some evidence of actual confusion, such “occasional instances of confusion . . . has generally been
held to be non-probative.” Empire Nat. Bank of Traverse City v. Empire of Am. FSA, 559 F. Supp.
650, 656 (W.D. Mich. 1983). Accordingly, “[t]his factor  does not tilt the balance of determining
whether a likelihood of confusion exists to a significant degree in either direction.” Therma-Scan,
Inc., 295 F.3d at 636.
5. Marketing Channels Used
Next a court must “consider the similarities or differences between the predominant
customers of the parties’ respective goods or services. Further, a court must determine whether the
marketing approaches employed by each party resemble each other.” Daddy’s Junky Music Stores,
109 F.3d at 285 (internal citation omitted). According to Plaintiff, the parties use identical
marketing channels, including their websites starting with the word RELIANT, as well as
Facebook and LinkedIn. (ECF Nos. 5 at 15–16; 30 at 12). Defendant maintains that simply because
both parties market on the internet, that does not “automatically lead to the conclusion that they
use common marketing channels.” (ECF No. 15 at 12). In fact, Defendant argues that its website
(www.reliantpayment.com) “reinforces that Defendant’s business is payment services, which is
distinct from debt collection.” (ECF No. 29 at 12). Moreover, Defendant argues that the parties
market to different customers, with Defendant targeting debt settlement companies and Plaintiff
targeting creditors. (Id. at 11–12).
Plaintiff’s website and social media are certainly marketing tools. The existence of these
as marketing tools, however, is hardly unique to these two companies. Were advertising on the
internet enough to find a significant overlap in marketing channels used, this factor would soon
become meaningless in the analysis. Instead of simply looking at the existence of a website and
social media accounts, then, the Court must analyze the entire “marketing approaches used by each
party.” Daddy’s Junky Music Stores, 109 F.3d at 285. Viewed through that lens, Plaintiff has failed
to establish that its marketing approach bears any significant resemblance to Defendant’s. There
is no evidence that the same types of people are targeted by both organizations—Plaintiff markets
to creditors, while Defendant markets to debt settlement companies. (ECF Nos. 29 at 11). While
both parties advertise on the internet, there is insufficient evidence that their marketing approaches
are similar enough to warrant a finding of likelihood of confusion.
6. Likely Degree of Purchaser Care
Plaintiff argues that when the marks are nearly identical, the weight of this factor is less
significant. (ECF No. 5 at 16). Even a consumer that might exercise care or is highly sophisticated
would still likely be confused because Defendant is using a mark that is identical to Plaintiff’s.
(Id.; ECF No. 30 at 13). Defendant maintains that its clients, sophisticated financial companies,
exercise significant diligence and would not mistake a payment processor for a debt collector.
(ECF Nos. 15 at 13; 30 at 12). Further, Defendant must partake in “tremendous technical and
operational” onboarding, due diligence, and integration for their clients. (ECF No. 32 at 8).
“The degree of care with which consumers likely purchase the parties’ goods or services
may affect the likelihood of confusion. . . . The ultimate significance of a given degree of care,
however, often will depend upon its relationship with the other seven factors.” Daddy’s Junky
Music Stores, 109 F.3d at 285.
Generally, in assessing the likelihood of confusion to the public, the standard used
by the courts is the typical buyer exercising ordinary caution. However, when a
buyer has expertise or is otherwise more sophisticated with respect to the purchase
of the services at issue, a higher standard is proper. Similarly, when services are
expensive or unusual, the buyer can be expected to exercise greater care in her
purchases. When services are sold to such buyers, other things being equal, there is
less likelihood of confusion.
Homeowners Group, 931 F.2d at 1111. Given the complexity of the industry, the parties’ services
are not those which are normally subject to impulse buying. Empire Nat. Bank of Traverse City v.
Empire of Am. FSA, 559 F. Supp. 650, 656 (W.D. Mich. 1983). Given this higher level of care, as
well as the difference between the parties’ services, this Court finds that there is less likelihood of
confusion between the parties’ marks. Honorable Ord. of Kentucky Colonels v. Bldg. Champions,
LLC, 345 F. Supp. 2d 716, 723 (W.D. Ky. 2004) (“A greater than usual degree of purchaser care
lessens the likelihood of confusion between two products with similar marks.”); see also Empire
Nat. Bank, 559 F. Supp. at 656 (recognizing that court have generally held that customers in
complex financial industries, such as banking, “exercise a greater degree of care than do customers
of other businesses”). With that said, however, “confusingly similar marks may [still] lead a
purchaser who is extremely careful and knowledgeable . . . to assume  that the seller is affiliated
with or identical to the other party.” Daddy’s Junky Music Stores, 109 F.3d at 286. Considering
that, this Court finds that the high degree of care Defendant’s customers would presumably
exercise weighs only somewhat against finding a likelihood of confusion.
7. Defendant’s Intent in Selecting the Mark
Plaintiff represents that Defendant’s conduct has been willful since at least July 2021, when
it first contacted Defendant and asked it to cease from further use of the RELIANT mark. (ECF
No. 5 at 16). Defendant’s use of a contested mark with the knowledge of the protected mark, argues
Plaintiff, can support a finding of intentional copying. (Id.). At the Preliminary Injunction hearing,
Plaintiff testified that their CEO had worked extensively with one of Defendant’s executives who
was fully aware of Plaintiff’s business name. (ECF No. 30 at 13). Defendant maintains that its
decision to truncate its name by removing “Account Management” hardly constitutes evidence
suggesting that it sought to cause marketplace confusion. (ECF Nos. 15 at 13; 29 at 13). It also
asserts that when it shortened its name, it added the ram’s head logo as “an intentional bridge to
its longstanding ‘RAM’ industry moniker.” (ECF No. 29 at 13). According to Defendant, it would
not have wanted to confuse itself with Plaintiff, given Plaintiff’s less than stellar professional
reputation. (ECF Nos. 15 at 14; 29 at 14). Further, it decided to refresh the brand in spring 2020
and engage a creative company in summer 2020, which occurred 13 months prior to Defendant
learning about Plaintiff. (ECF No. 32 at 8–9).
It is well settled that “[i]f a party chooses a mark with the intent of causing confusion, that
fact alone may be sufficient to justify an inference of confusing similarity.” Homeowners Group,
931 F.2d at 1111. A plaintiff need not provide direct evidence that a defendant intentionally copied
a mark; establishing instead that the defendant used the mark with knowledge of the mark’s
protection can be sufficient to support a finding of intentional copying. Id. In addition, knowledge
can be presumed upon proof of “extensive advertising and long-term use of a protected mark.”
Champions Golf Club, 78 F.3d at 1121 (“[U]se of a mark with knowledge of another’s prior use
of the mark supports an inference of intentional infringement.”). The Sixth Circuit has rejected the
view that the mere “existence of a registered mark demonstrates that the alleged infringer
intentionally copied the mark,” reasoning that under such a rule, “presumably all trademark
infringement cases could result in a finding of intentional copying.” Daddy’s Junky Music Stores,
109 F.3d at 286–87. The existence of a registered mark does “constitute[ ] some circumstantial
evidence that [a] defendant was aware of [a particular mark].” Id. at 287.
As Plaintiff’s mark has been registered, there does exist some evidence that Defendant
intentionally copied Plaintiff’s mark. Moreover, Defendant was aware of Plaintiff’s mark since at
least July 2021, when Plaintiff’s counsel sent Defendant a demand letter. (ECF No. 5 at 16). As
Defendant points out, however, “the appropriate ‘intent’ to focus on is not the intent to copy but
rather the intent to deceive or confuse.” Groeneveld Transp. Efficiency, Inc. v. Lubecore Int’l, Inc.,
730 F.3d 494, 514 (6th Cir. 2013); Ferrari S.P.A. v. Roberts, 944 F.2d 1235, 1243 (6th Cir. 1991)
(asking whether the intent was “to deceive purchasers and thus derive a benefit from another’s
name and reputation” or “rather to avail oneself of a design which is attractive and desirable”).
Upon review of the record, this Court finds no evidence that Defendant had any intent to
deceive or confuse consumers when it rebranded. Rather, the impetus behind Defendant’s rebrand
was to revitalize following the adverse ruling from the CFPB. While Plaintiff has provided some
evidence to support a presumption that Defendant knew of the mark’s protection, it has not
provided any evidence that Defendant intentionally copied its mark. Nat’l K-9, Inc. v. Nat’l Canine
Assoc., Inc., 2009 WL 10679476, * 6 (S.D. Ohio Dec. 10, 2009). Accordingly, this factor only
somewhat supports a finding of likelihood of confusion.
8. Likelihood of Expansion of the Product Lines
Plaintiff maintains that both parties service a variety of different types of clients, and it is
entirely foreseeable, and probable, that both will continue to expand their customer base. (ECF
No. 5 at 17). Plaintiff testified that as a result of losing contracts due to COVID, the company plans
to expand its offerings to include first party, customer service through a call center and wants to
expand into the healthcare and financial services industry. (ECF No. 30 at 14). Plaintiff alleges
that Defendant is also seeking to expand its services because its website says it provides services
to a wide variety of other parties beyond debt settlement companies. (Id.). Defendant disagrees,
arguing that Plaintiff is prohibited by law from expanding to the market of services provided by
Defendant, and vice-versa. (ECF No. 15 at 8). Because it is a dedicated financial custodian,
Defendant represents that the Telemarketing Sales Rule (16 C.F.R. § 310) requires that it remain
independent from debt settlement companies like Plaintiff. (Id. at 9). Finally, Defendant has no
plans to expand its services. (ECF No. 32 at 9).
A “‘strong possibility’ that either party will expand his business to compete with the other
or be marketed to the same consumers will weigh in favor of finding that the present use is
infringing.” Homeowners Group, 931 F.2d at 1112. Such expansion could include “[a] geographic
expansion or an increase in the types of products or services offered . . . .” Daddy’s Junky Music
Stores, 109 F.3d at 287. Mere speculation that one of the parties may, at some undefined point in
the future, expand its business in such a way as to compete with the other party is not sufficient to
warrant a finding of likelihood of confusion. See, e.g., Worthington Foods, Inc. v. Kellogg Co.,
732 F. Supp. 1417, 1450 (S.D. Ohio 1990) (finding plaintiff’s possible expansion into defendant’s
market too speculative to warrant a finding of likelihood of confusion, in part because plaintiff had
not signed a purchase agreement); cf Champions Golf Club, 78 F.3d at 1122 (finding potential
confusion resulting from expansion where both parties—local golf clubs—had already hosted
national golf tournaments and intended to do so again in the future).
Here, there is little direct evidence that either party will expand their businesses to compete
with the other or be marketed to the same consumers. Plaintiff’s claim that the parties may continue
to expand their customer base and services is simply too speculative at this point. Nat’l K-9, Inc.,
2009 WL 10679476, * 6 (emphasis added). This is insufficient for the Court to find that this factor
supports a finding of likelihood of confusion.
After weighing all eight factors to be considered when determining the likelihood of
confusion, the Court finds that only three of the factors—strength of the plaintiff’s mark, the
similarity of the marks and Defendant’s intent in selecting its mark—weigh in favor of finding a
likelihood of confusion. And even these factors, weigh only slightly in Plaintiff’s favor. While the
Court is aware that these factors are not to be applied with any sort of mathematical precision, the
overall findings left after evaluating all eight factors is that Plaintiff has failed to establish a
likelihood of confusion resulting from Defendant’s use of the “RELIANT” mark, and the Court
therefore finds no likelihood of success on the merits.
B. Irreparable Injury
Plaintiff emphasizes that irreparable harm is presumed from Defendant’s infringement.
(ECF No. 5 at 18 (citing Daimler Chrysler v. The Net Inc., 388 F.3d 201, 208 (6th Cir. 2004)).
This presumption aside, Plaintiff argues that Defendant’s use of Plaintiff’s mark poses a certain
and immediate threat of irreparable harm to Plaintiff’s reputation and goodwill, particularly given
the recent CFPB enforcement action against Defendant. (Id.). Plaintiff asserts that it routinely
submits RFPs for government contracts, which requires it to disclose any ongoing lawsuits. (ECF
No. 30 at 16). Because government agencies are sensitive to the company’s reputation, Plaintiff is
concerned that they may lose business if they are further associated with Defendant. (Id.: ECF No.
31 at 7). Further, it points out that Defendant’s reference to Plaintiff’s negative reputation serves
only as a distraction without any substance. (ECF No. 30 at 17). Defendant responds that it has
sufficiently rebutted the presumption of irreparable harm, and moreover, Plaintiff’s delay of 380
days before suing and moving for injunctive relief fully rebuts Plaintiff’s claim of irreparable harm.
(ECF No. 15 at 15–16). Defendant maintains that Plaintiff “has adduced only speculative
assertions to show irreparable injury.” (Id. at 17; ECF No. 29 at 15). Defendant points to the
preliminary injunction hearing transcript and offers examples of several occasions in which
Plaintiff conceded that it has not suffered injury as a result of Defendant’s use of RELIANT. (ECF
No. 32 at 9; see also ECF No. 28 at 156:17–158:3; 168:12–169:24). At most, Defendant’s argue
that Plaintiff has only asserted that “prospective higher education clients might confuse Defendant
for Plaintiff.” (ECF No. 29 at 15).
Where a plaintiff can show a likelihood of success on the merits of its trademark claims, a
court may presume irreparable injury. Worthington Foods, Inc. v. Kellogg Co., 732 F. Supp. 1417,
1460 (S.D. Ohio 1990). A showing of likelihood of confusion, however, does not mandate a
finding of irreparable injury. National Bd. of YMCA v. Flint YMCA, 764 F.2d 199, 201 (6th Cir.
1985). In this case, this Court finds no likelihood of confusion and therefore no likelihood of
success on the merits. As a result, this Court will not presume the existence of irreparable injury.
Indeed, the Sixth Circuit has held that “a finding that a party was not ‘likely to prevail’ on the
merits would not preclude a court from exercising its discretion to issue a preliminary injunction,
if the movant ‘at least shows serious questions going to the merits and irreparable harm which
decidedly outweighs any potential harm to the defendant . . . .’” Frisch’s Restaurant Inc. v.
Shoney’s Inc. (Frisch’s II), 759 F.2d 1261, 1270 (quoting Friendship Materials, Inc. v. Michigan
Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)).
Plaintiff has not shown that it will suffer irreparable injury in the absence of immediate
injunctive relief. Plaintiff claims that its reputation and goodwill have suffered in the community
as a result of Defendant’s actions, yet has adduced no such evidence. Plaintiff has not produced
any market studies of name recognition, any figures of lost sales, or any evidence of actual
confusion––other than the limited few already analyzed by this Court. Accordingly, as these
alleged injuries are completely speculative, and Plaintiff has failed to show a serious question as
to the likelihood of success, this factor does not weigh in favor of issuing an injunction.
C. Harm to Third Parties
Here, Plaintiff argues that any harm caused to apparent infringers is not entitled to
consideration when balancing the injuries and determining whether or not injunctive relief should
issue. (ECF Nos. 5 at 19; 30 at 17-18). Furthermore, Plaintiff maintains it has made a substantial
investment of time and money in its mark as opposed to the investment by Defendant. (ECF No.
5 at 19). Because Defendant recently completed a brand change, Plaintiff alleges that Defendant
can make another and has failed to explain why such a change would impact its activities. (ECF
No. 31 at 8). Defendant, meanwhile, argues that the concrete and immediate harm it would face
strongly weighs against an injunction. (ECF No. 15 at 18–19). Were this Court to grant Plaintiff’s
Motion, Defendant represents it would be required to modify its money transmitter licenses,
operating licenses, and contracts as well as change its website, business cards, promotional
materials, and trade booth materials. (Id.; ECF Nos. 28 at 22:24–23:9; 29 at 16-17). As a 30-person
company, Defendant asserts that such an effort would require that it divert attention away from
other projects at substantial cost. (ECF No. 29 at 17). Defendant estimates that an injunction would
cost Defendant approximately $1,900,000, result in lost new-customer enrollments, and delayed
onboarding of a new client. (Id.). Finally, Defendant argues that an injunction would not avoid the
speculative harm of losing a government contract that Plaintiff raises. (ECF No. 32 at 10).
In a trademark case, if the movant can show a likelihood of success, then the harm to others
caused by an injunction will likely consist in part of the non-movant’s lost profits from sales of
the apparently infringing articles and a loss of the money expended on promotional materials and
advertising. Such harm caused to apparent infringers, however, is not entitled to consideration in
assessing the harm caused by an injunction. See Central Benefits Mutual Ins. Co. v. Blue Cross
and Blue Shield Ass’n, 711 F.Supp. 1423, 1435 (S.D.Ohio 1989). Of course, courts may have to
consider harm to persons other than the infringer, but in most cases, only the fortunes of the
plaintiff and defendant are at stake. Accordingly, if the plaintiff alleging trademark infringement
can show a likelihood of success, the “harm to others” factor of the preliminary injunction standard
would normally favor the plaintiff as well.
This Court has not found that Plaintiff will suffer any irreparable harm absent injunctive
relief. Moreover, Plaintiff has not shown a likelihood of success on the merits as there is not
sufficient evidence of a likelihood of confusion. An injunction would, however, cause substantial
harm to Defendant because it would require affirmative, costly steps to alter Defendant’s use of
its mark. D & J Master Clean, Inc. v. Servicemaster Co., 181 F. Supp. 2d 821, 831 (S.D. Ohio
2002). Because there is no likelihood of confusion, Defendant is not considered an “apparent
infringer” and this Court can consider any harm it may suffer from an injunction. As an injunction
in this case would cause substantial harm to Defendant, the Court finds that Plaintiff has not
demonstrated that the balance of hardships tilts in Plaintiff’s favor.
D. Public Interest
Plaintiff argues that the public would be well-served by an injunction in this case, because
both parties are interacting with people who owe money to others, and both creditors and debtors
deserve their interests to be protected. (ECF No. 30 at 19). They further allege that it is a mistake
to defer to the USPTO’s decision, because the USPTO did not have the opportunity to review the
current facts. (ECF No. 31 at 9). Defendant argues that a brand change would disrupt the continuity
of services offered to Defendant’s customers, which is not in the public interest. (ECF No. 29 at
18). Defendant encourages this Court to defer to the “expert decision of the USPTO’s examining
attorneys, who allowed both of Defendant’s ‘Reliant’ mark.” (Id.).
In a trademark case, the public interest may be served by issuing an injunction where it
would prevent confusion among consumers in the marketplace. See Worthington Foods, 732 F.
Supp. at 1463. Because the Court found no likelihood of confusion in this case, however, that
interest would not be served by issuing an injunction.
For the foregoing reasons, Plaintiff’s Motion for a Preliminary Injunction (ECF No. 5) is
IT IS SO ORDERED.
ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
DATED: November 18, 2022
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