In its petition to the justices, Kroger highlighted a split among the appeal courts. Kroger noted that the Second and Federal Circuits review each factor and the ultimate finding for likelihood of confusion from the beginning, while the Sixth Circuit reviews each factor from scratch under the clearly erroneous standard, except for the ultimate finding. The Fourth, Seventh, and Ninth Circuits hold that the analysis of each factor and the ultimate finding are questions of fact reviewed under a clearly erroneous standard.
Reactions and Statements
Grubhub, in its brief opposing Kroger’s petition, argued that the district court and court of appeals did consider all the likelihood of confusion factors and claimed there is no circuit split as Kroger contends.
“Absent clear error, appellate courts across the country uniformly defer to a district court’s factual findings on the question of likelihood of confusion, and on the appropriateness of denying a motion for a preliminary injunction,” Grubhub’s brief stated. “That is precisely what the Seventh Circuit did here when it declined to disturb the district court’s denial of Home Chef’s motion for a preliminary injunction.”
