Judge Paul Crotty
Lifeguard Licensing Corp. sued Gogo Sports Inc. for trademark infringement and breach of contract for selling items bearing the stylized words "Life Guard San Francisco" encircling a cross symbol. Both parties moved for summary judgment. Gogo argued that Lifeguard's marks were not entitled to protection because they were generic marks. The court found that this argument presented a factual question that was dependent on "how the purchasing public view[ed] the mark." Based on Gogo's expert's survey and the widespread sale of Lifeguard-branded apparel for use by lifeguards, the court reasoned that reasonable minds could differ with respect to whether "the primary significance of the [Lifeguard Marks] in the minds of the consuming public was not the product but the producer." Thus the court denied the summary judgment motions on this claim because material questions of fact remained as to the marks' distinctiveness. In regards to the breach of contract claim the court found that the undisputed facts showed that the parties never went beyond preliminary discussions, and thus there was no contract. Therefore, Gogo's motion for summary judgment on that claim was granted.
