Survey Says? Buc-ee’s Trademark Case Goes to Trial

Survey Says? Buc-ee’s Trademark Case Goes to Trial

TexasBarToday_TopTen_Badge_VectorGraphicThis week on Five Minute Law we have a survey. First take a look at the following photos taken at a store on the side of a Texas highway:

Choke Canyon SnacksChoke Canyon Jars and Drink StationChoke Canyon T-shirtsChoke Canyon CoolersChoke Canyon IceChoke Canyon Logo

And here’s the question: Who do you think owns this store?

If this were a real trademark survey, the question would be open-ended. But to make it more interesting I’m going to make it multiple choice. Pick the answer that comes closest to capturing your reaction:

A. Buc-ee’s, or a company affiliated with Buc-ee’s.

B. A company unaffiliated with Buc-ee’s that is imitating the Buc-ee’s concept.

C. I’m not from Texas. I have no idea what “Buc-ee’s” is.

Answer A would suggest that the owner of this store is infringing on the Buc-ee’s trademarks and trade dress. Infringement occurs when the use of similar marks causes a likelihood of confusion concerning the source, sponsorship, approval, or affiliation of the products or services.

But I’m guessing that most of you–at least the ones from Texas–answered B. I know this because I already did my own little pilot survey. More about that later.

The actual answer is Shepherd Retail, Inc.–and two other corporations you haven’t heard of that operate similar “Choke Canyon” stores. Those companies are defendants in a jury trial pending in federal court in Houston. (The images above are from the First Amended Complaint in that case.)

Buc-ee’s claims the defendants are unlawfully infringing and diluting Buc-ee’s distinctive beaver trademark and distinctive trade dress. As Gabrielle Banks reported in the Houston Chronicle, lawyers made opening statements in the case last Tuesday.

Likelihood of Confusion and Trademark Surveys

So do trademark law experts agree that Choke Canyon is infringing Buc-ee’s trademarks?

That would be interesting to know, but it really doesn’t matter. You see, trademark law is different from other kinds of intellectual property law in that it is almost entirely subjective.

I don’t mean subjective in the sense that there are no fixed governing standards. I mean that it doesn’t matter what some hypothetical reasonable person would think. What matters is whether actual consumers are likely to be confused about the source of a product or service, regardless of whether some smarter person thinks they should be confused.

Contrast that with patent law. The question there would be, for example, does some feature of the Samsung Galaxy phone infringe on a patent for smartphone technology owned by Apple? Even if experts disagree about the answer, that question is entirely objective. You look at the features of the product and compare them with the “claims” set forth in black and white in the patent. If the product does the things disclosed in one or more of the claims, it infringes. It doesn’t matter whether consumers think it infringes.

But in trademark law, what consumers think is everything. For that reason, consumer surveys are usually regarded as the most probative form of evidence.

If you know anything about litigation, you can see where this is heading: a cottage industry of high-priced Ph.Ds who design and supervise the surveys, and a “battle of experts” when there are enough dollars at stake.

My Pilot Survey

The amount of money in play is important because a properly designed and implemented trademark survey is very expensive (if you have to ask, you can’t afford it). So, companies will sometimes have an expert do a smaller–and cheaper–“pilot” survey to get a preliminary indication.

But even a pilot survey by an expert would be an extravagant expense to support a single blog post. So for this post I did my own pilot survey of three consumers: my wife and two kids.

They fit the target demographic: Texas residents who often drive between Houston, Austin, Dallas, and San Antonio. And all three of them are very familiar with Buc-ee’s. We stop there just about any time we are driving to another city in Texas.

So what would they say when I asked them if the products and marks from Choke Canyon were from Buc-ee’s?

Not so fast! You can’t ask the survey question in a way that suggests what the answer is. In a trademark survey, methodology is everything. The way the questions are phrased can have a huge impact on the results.

The classic survey methodology in trademark cases is the Eveready method. A typical Eveready survey would show a consumer a photo of the defendant’s product and ask “who makes this product?” The idea is to avoid bias by making the question open-ended and never even mentioning the name of the plaintiff.

So, to comply with Eveready and to avoid a Daubert challenge, I showed my subjects the images above from the Choke Canyon stores and asked two questions: (1) who do you think puts out the products shown here (or owns the store shown here)? (2) do you think the company that makes this product (or owns this store) is connected with or affiliated with some other company?

Survey Results

Let’s start with my son Eric (nine years old). When he saw the images that do not include the words “Choke Canyon” and I asked who puts out the products, he initially said the “alligator place” but eventually said “I wouldn’t know.” When he saw the images that do include the words “Choke Canyon,” he answered “Choke Canyon.” Why? “Because it says Choke Canyon on it.”

Did he think Choke Canyon was connected with or affiliated with some other company? No.

One thing I learned from questioning Eric is that it can make a difference whether the person taking the survey knows it is ok to say “I don’t know.” I think it’s human nature to want to come up with some answer, rather than admitting you just don’t know.

My daughter Hailey (17 years old) had pretty similar answers. She said “I don’t know” when asked about who puts out the products and owns the store, but in a couple cases she added “I would assume it was some tourist location in Florida” and “I would assume some kind of small local business.” For the products that say “Choke Canyon,” she said Choke Canyon Travel Center was the source “because it says it right on the center of the label.”

Did she think Choke Canyon was connected with or affiliated with some other company? No.

I decided to press a little. “Why don’t you think it’s affiliated with Buc-ee’s?”

“It looks like Buc-ee’s,” she said, “but with an alligator,” so “I don’t think it’s affiliated with Buc-ee’s.” She added, “it’s a completely different logo, obviously a different company.”

When I told her Buc-ee’s is suing Choke Canyon for trademark infringement she simply said, “that’s stupid.” (Folks, I just report the survey results.)

“Buc-ee’s is a beaver. This is an alligator.”

Finally, I surveyed my wife Rebecca. (Caveat: she was a legal assistant and is a really smart cookie, so maybe not representative of consumers generally.)

“Who do you think puts out the products shown here?” I asked. “Choke Canyon Travel,” she said, “but the products look just like stuff from Buc-ee’s.”

Don’t jump ahead!

“Do you think the company that sells this is connected with or affiliated with some other company?” I asked. “Probably not,” she said, but then we got sidetracked talking about what it meant that the trademark had that little (R) symbol next to it.

Stop over-analyzing!

When we got back on track, I showed her the images without the words “Choke Canyon,” and she said “I have no idea” and there was “no possible way” to know who put the products out or owned the store.

“Do you think the company that owns this store is affiliated with or connected with some other company?” No, she said. “I have no reason to think that.”

But why didn’t she think the Choke Canyon store was affiliated with Buc-ee’s? “Buc-ee’s is a beaver, this is an alligator.” Then, unprompted, she asked, “is Buc-ee’s suing them?” Yes, I told her. “That’s the stupidest thing I’ve ever heard.” (She doesn’t mince words.)

My wife then pulled out her phone and showed me a photo she had taken in some gas station. It was something like “Oma’s Choice Texas Quail’s Eggs” in an old-timey mason jar. It had the same kind of “country” look and feel as the jarred products from Choke Canyon and Buc-ee’s, and she said that gas station had the same products like “nuggets” that Buc-ee’s is known for.

Ah, third-party use. A further complication.

I tried to steer back to the issue at hand. “But don’t you agree that Choke Canyon is copying the Buc-ee’s concept?” I asked.

“Yes,” she said, “but you can’t trademark a concept.”

Like I said. A smart cookie.


IMG_4571Zach Wolfe ( is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He didn’t have space here to explain “trade dress,” but you can check out this video at 2:29.

These are not the opinions of his firm or clients (as noted, they are not even his opinions), so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.






Did You Get the Digits? Judge Grants Preliminary Injunction in Houston College of Law Trademark Litigation

Did You Get the Digits? Judge Grants Preliminary Injunction in Houston College of Law Trademark Litigation

Federal District Court finds that “Houston College of Law” Creates Likelihood of Initial-Interest Confusion with University of Houston

Meet Dave. Dave is a college student in Florida. He spent the first couple of years at school mostly partying, but lately he’s been working on getting his grades up, and he’s thinking about applying to law school. Dave doesn’t have any lawyers in his family, but he’s familiar with the University of Houston because he likes high-scoring college football teams. Dave saw an ad for Houston College of Law and, thinking it must be part of the University of Houston, he checked out its website.

Recognizing the red and white color scheme, Dave started clicking through the website to find out more. Pretty soon, Dave realized that Houston College of Law may not be part of the University of Houston. “Hey, Tony,” he said to his roommate, “is Houston College of Law the one you’re applying to?” “No, you dumb***,” Tony said.[1] “That’s the one with the moot court teams. U of H has its own law school. It’s the one in the top 50.” “Oh,” Dave said sheepishly. “Well I’m going to check out this Houston College of Law anyway.”

Did actionable trademark infringement just happen here? That, essentially, is the difficult issue presented in Board of Regents of the University of Houston System v. Houston College of Law, which I first covered here. You can read the Houston Chronicle’s coverage here.

On October 14, Judge Keith Ellison issued this opinion and granted the University of Houston’s motion for a preliminary injunction to stop South Texas College of Law from changing its name to Houston College of Law, finding there was a substantial likelihood that prospective law students would confuse Houston College of Law with the University of Houston, at least initially, and that such “initial-interest confusion” is actionable in the Fifth Circuit.

Wow.  That was a really long sentence.  Let’s break this down.

What Issues Were Most Important to the Decision?

Like most trademark infringement opinions, Judge Ellison’s opinion walks through eight factors—the “digits”—to determine the likelihood of confusion. But the decision really came down to three key issues.

Houston College formerly
Would you think this school is part of the University of Houston?

First, there was the typical “Battle of Surveys” between two experts. UH’s expert did a survey that found a 25% net confusion rate. Houston College of Law’s expert’s survey found a 6% net confusion rate.[2] “Thus,” Judge Ellison deadpanned, “as is so often the case in high-stakes litigation, highly qualified experts have presented dueling reports that reach significantly different results.”

The judge found that UH’s expert’s methodology was more reliable, and that was a major factor supporting the decision. The lesson for lawyers who handle trademark litigation is that it is important to work closely with the expert ahead of time to make sure the methodology is as defensible as possible. I know, easier said than done.

Second, UH benefitted from citing anecdotal examples of actual confusion, such as misdirected mail and email, including confusion by prospective law students. These instances of confusion were minor—and probably fleeting—but the cumulative effect was to bolster UH’s argument that people are likely to associate Houston College of Law with UH.

Third, UH won the legal argument on initial-interest confusion. I explained the concept of initial-interest confusion when I wrote about the preliminary injunction hearing: When a consumer walks into a bar called the “Velvet Elvis” thinking it is affiliated with Elvis Presley and then realizes it is not, initial-interest confusion has happened. Even though the consumer is not confused at the “point of sale,” the initial confusion has succeeded in getting him “in the door.”

Trademark surveys: they’re not rocket science

Houston College of Law’s lawyers argued the doctrine of initial-interest confusion doesn’t make sense when the product at issue is a three-year law degree. Even if Dave goes to the Houston College of Law website thinking it is affiliated with the University of Houston, they might say, Dave is eventually going to figure out the two institutions are not affiliated. No one is going to go to the wrong law school for three years by mistake. No harm, no foul.

But Judge Ellison disagreed. Even if the initial confusion only causes Dave to go to the Houston College of Law website, the judge would say, Houston College of Law has unfairly obtained some benefit from the goodwill built up by the University of Houston, and that is the kind of harm the Lanham Act is intended to remedy.

What Issues Were Less Important to the Decision?

Three issues received a lot of attention at the hearing but relatively less attention in the opinion.

First, the lawyers at the hearing spent a lot of time talking about Houston College of Law’s intent to cause confusion with the University of Houston, particularly the change in school colors from crimson and gold to “Cougar” red and white. You know it’s a trademark lawsuit when people get worked up arguing about different shades of red.

Modern art, or evidence of trademark infringement?

Judge Ellison did go over the evidence and arguments on intent in some detail, and he did find the change in school colors “troubling.” Ultimately, however, intent was not a major stated factor in his decision. He found the question of intent a “close call” that did not weigh in either side’s favor in the likelihood of confusion analysis.

Second, as I described when I first reported on the hearing, there was a lot of evidence and argument about whether the University of Houston still calls its law school “College of Law.” This was potentially important, because it is easier to confuse “Houston College of Law” with “College of Law” than with “Law Center.” But Judge Ellison sidestepped this issue by focusing on just two of the UH trademarks at issue: “University of Houston” and “University of Houston Law Center.” This meant he didn’t even have to address UH’s use vel non of “College of Law.”[3]

Third, many hours were billed arguing about whether, after the Supreme Court’s eBay decision, trademark infringement creates a presumption of irreparable injury to support granting an injunction. At least one prescient commentator predicted that Judge Ellison would avoid the need to decide this issue:

If Judge Ellison issues an injunction, I expect he will say something to this effect: “It is unclear in the Fifth Circuit whether a showing of trademark infringement creates a presumption of irreparable harm, but in this case it is unnecessary to decide that issue because there is evidence of irreparable harm.”

Turns out that is essentially what Judge Ellison said: “Irrespective of the presumption, the Court concludes that monetary damages will not adequately compensate UH.”

And yes, you guessed it, the commentator quoted above was Five Minute Law.

Update: At a hearing on October 26, Houston College of Law’s lawyers agreed to stop using “Houston College of Law” and to adopt a new name. See Gabrielle Banks’ coverage in the Houston Chronicle here.

Overtime: The Way Opinions Should Be Written

At the risk of going over my five minutes, I have to note two things about the Board of Regents opinion that are a credit to Judge Ellison and—it must be said—a discredit to some other courts by comparison. First, there is the simple fact that Judge Ellison wrote his own opinion at all. Often, trial court judges simply sign an order that has been prepared by the winning side. To be fair, writing an opinion is a lot of work (and federal judges typically have more staff support than state court judges).

But the more disappointing reason many trial court judges don’t like to write their own opinions and orders is that their main concern is not getting reversed on appeal. They figure that signing a one-sided order prepared by the winning side is likely to maximize the chances of the order holding up on appeal. But should that be the judge’s greatest concern?

Admittedly, it’s a lot of work for a judge to write his own opinion

The second thing that is impressive about Judge Ellison’s opinion is less obvious: it is not a one-sided opinion that pretends the decision is easy. For each sub-issue, Judge Ellison considered the best arguments made by each side and gave each side its due. For example, in deciding which expert survey was more persuasive, he explained the strengths and weaknesses of each, concluding that “neither survey is without flaw” but that the UH survey was “substantially stronger.” I don’t necessarily agree with the decision—I’m still a little skeptical about initial-interest confusion—but the important thing is that the process be fair and impartial.

If you don’t spend a lot of time reading court opinions, you might be thinking “what’s the big deal, isn’t that what judges are supposed to do?” The problem is that even when judges write their own opinions, they often do so as if they were writing a brief for the winning side. All of the losing arguments are absurd. The winning arguments are stated so strongly that the reader wonders how it could have come out any other way. When this style is employed, it is fairly obvious.

But I will let you in on a little secret that may not be so obvious: there is nothing to stop the judge from writing an opinion that simply ignores facts and arguments that do not support the decision. Believe me, it happens. Unless the reader was personally involved in the case or takes the time to read the briefs, he probably won’t even realize the judge has done this.

And that’s a shame.



Zach Wolfe is a Texas trial lawyer who handles non-compete and trade secret litigation (and sometimes even trademark litigation). His firm Fleckman & McGlynn has offices in Austin, Houston, and The Woodlands.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] Guys sometimes talk like this to each other. Contrary to recent reports, however, they do not typically brag to each other about sexual assault.

[2] “Net” confusion is the percentage of respondents confused by an infringing mark after filtering out the percentage of people who were confused by a non-infringing “control” mark.

[3] I’ve been looking for an excuse to use “vel non.”

Court Holds Preliminary Injunction Hearing in “Houston College of Law” Trademark Case

Court Holds Preliminary Injunction Hearing in “Houston College of Law” Trademark Case


There is something almost surreal about a Houston courtroom packed with Houston lawyers watching some of Houston’s most prominent lawyers argue about whether a Houston law school’s new name infringes the trademarks of another Houston law school.

That was the scene on Friday, August 26 in U.S. District Judge Keith Ellison’s courtroom. Judge Ellison heard lengthy presentations by two teams of lawyers. The judge interjected questions and comments but made no ruling. You can read the motion for injunction here and the response here.

Spoiler Alert:  Judge Ellison GRANTED the temporary injunction in this 42-page opinion issued on October 14. You can read my analysis of the opinion here

For readers who are not Houston lawyers, a little background. South Texas College of Law is a private law school located in downtown Houston. It changed its name to Houston College of Law. The nearby University of Houston promptly sued Houston College of Law for trademark infringement, claiming that the new name was likely to be confused with the public University of Houston, which has its own law school.[1]

Houston College formerly
Houston College of Law argues it changed its name because “South Texas” gave people the wrong idea

Shortly after being sued, Houston College of Law received a gift: this opinion from the Eleventh Circuit Court of Appeals holding that there was no likelihood of confusion between “Florida International University” and “Florida National University.”[2] Houston College of Law argued that this Florida case provided a “blueprint” for the Houston case. However, the University of Houston argued that the Florida case had significantly different facts.

Watching this hearing was more educational than attending any trademark litigation seminar. Among a host of intriguing issues raised, these stood out:

  1. What is the Name of the Law School at the University of Houston?

You would think this would be an easy issue. Over the years, the law school at the University of Houston has called itself the “University of Houston College of Law,” “Bates College of Law,” and the “University of Houston Law Center.”

The defendant argued that “University of Houston Law Center” has been the name since 1982, and that UH has abandoned “University of Houston College of Law.” The plaintiff argued that despite the change to the primary name “University of Houston Law Center,” UH has continued to use “College of Law” on diplomas and other materials.

Houston College of Law Plaque and Diploma
UH argues it still uses the name “College of Law”

Why does it matter? For one thing, the University of Houston did not include “University of Houston Law Center” on the list of registered and common law trademarks it sought to protect. It is easier to show a likelihood of confusion between “Houston College of Law” and “University of Houston College of Law” than to show a likelihood of confusion between “Houston College of Law” and “University of Houston Law Center.” A rose by any other name may smell as sweet, but in trademark litigation, the name’s the thing.

Judge Ellison did not resolve this issue at the hearing, but it was interesting that he asked more than once whether the defendant’s new name could cause some confusion with the name “University of Houston Law Center.” There was also a lot of argument about school colors, but the judge seemed less interested in that.

  1. Who Are the Relevant Purchasers of Services from a Law School?

Houston College of Law argued that prospective students are the relevant consumers, while the University of Houston argued for a broader group that includes people who hire law school graduates. Why does this matter?

Let’s back up a little. The key issue in trademark infringement litigation is “likelihood of confusion.” To determine likelihood of confusion, courts consider a list of eight factors (for some reason the Fifth Circuit calls them “digits”), which include the “identity of purchasers” and the “degree of care exercised by potential purchasers.”[3] A higher degree of care means a lower likelihood of confusion.

If, as Houston College of Law argues, the relevant consumers are prospective law school students, you would expect the likelihood of confusion to be lower. These are relatively sophisticated “purchasers” making a major life decision. They are likely to exercise a high degree of care in selecting the place where they are going to spend their lives (and money) for the next three years.

But if you expand the universe of “consumers” to a larger group that includes practicing lawyers and potential clients, you would expect the likelihood of confusion to be higher. In a sense, UH argues, a law school doesn’t just produce education, it produces law school graduates. The “consumers” of those graduates include the people who decide whether to hire the graduates. Those people are not making a life decision about where to go to law school and may be more likely to be confused.

Both arguments are plausible. But arguments are one thing, authorities are another. Judge Ellison asked more than once what authority—meaning case law—the University of Houston had to support its position that the relevant consumers are not just prospective law students. UH had an argument for its broader definition of relevant consumers, but it did not identify any direct authority for it.

UH Law Center
UH argues that the relevant consumers are not limited to prospective law students

But even if the relevant consumers are prospective students, UH argued, the survey conducted by its expert found that the confusion rate among prospective law students was actually higher than the confusion rate among other groups. Houston College of Law, on the other hand, argued that any initial confusion among prospective law students will be quickly dispelled as soon as they start investigating law schools. That argument dovetails with the next legal issue.

  1. Does “Initial-Interest Confusion” Matter When the Service at Issue is a Three-Year Law Degree?

When the defendant’s alleged infringement causes initial confusion among consumers that is later cleared up, trademark lawyers call it “initial-interest confusion.” Does evidence of initial-interest confusion establish a “likelihood of confusion”?

Houston College of Law argued that the concept of initial-interest confusion, if it applies at all in the Fifth Circuit, is limited to scenarios like bars and fast food restaurants. For example, if a restaurant on the highway uses the name “McDonalds” to get people to pull over and come in, it has caused McDonalds harm because once those people are “in the door,” they may decide to stay even after they realize “this isn’t the real McDonalds.” Similarly, if a bar uses the word “Elvis” in its name to get people in the door, it has benefitted from the association with the King, even if people later realize that the bar is not affiliated with the real Elvis Presley.[4]

coffee shop sign
A trademark that gets people “in the door” can create “initial-interest confusion”

Prospective law school students, on the other hand, are not going to walk into a law school because of the name and say “well, as long as I’m here, I might as well stay another three years and get a law degree.” Even if a prospective student initially thinks that Houston College of Law is affiliated with the University of Houston, that initial impression does not cause any harm to the University of Houston once the student learns he was mistaken. At least that is Houston College of Law’s argument on “initial-interest confusion.”

*Update: On September 13 Judge Ellison issued this order asking for supplemental briefing on this very issue. UH filed this brief on September 20, and Houston College of Law filed this brief on September 27.

  1. Does Trademark Infringement Create a Presumption of Irreparable Injury?

If the judge finds a likelihood of confusion, does UH get an injunction? Theoretically, a plaintiff seeking an injunction must show imminent “irreparable injury,” meaning injury that cannot be adequately compensated by money damages. I say “theoretically” because as a practical matter, this is one of the most ignored rules in litigation. The real rule seems to be that an injunction will be issued if the judge thinks the defendant’s conduct is not just bad, but really bad.

But that’s a subject for another post. In trademark litigation, it is usually enough for a plaintiff to prove that the defendant is infringing the plaintiff’s trademark. The court then issues an injunction ordering the defendant to stop doing the thing that is infringing the plaintiff’s trademark. This has become so commonplace that some say a showing of likelihood of confusion creates a presumption of irreparable injury, such that specific evidence of irreparable injury is not required.

Does the eBay case apply to trademark litigation?

However, in eBay Inc. v. MercExchange, L.L.C., the U.S. Supreme Court declined to adopt a categorical presumption that patent infringement causes irreparable harm favoring an injunction.[5]

Does the eBay principle apply to trademark infringement as well? This is an issue trademark lawyers love to argue, but it borders on academic. In most cases the plaintiff offers at least some evidence of irreparable harm. If the judge is inclined to grant an injunction, it is safer for the judge to cite evidence than to rely on a categorical presumption that may or may not apply.

The argument to Judge Ellison on this issue was typical. Houston College of Law argued that there is no presumption of irreparable injury and that the evidence did not prove irreparable injury. Conversely, the University of Houston argued that there is a presumption of irreparable injury and that even without a presumption, the evidence proves irreparable injury.

“How do you value a law school?” UH’s counsel pointedly asked in his summation. If the University of Houston Law Center’s national ranking drops because of confusion with Houston College of Law, he argued, that harm cannot be adequately compensated with dollars. The same number of students may enroll and pay the same tuition, but the quality of the students won’t be the same.

If Judge Ellison issues an injunction [narrator: he did], I expect he will say something to this effect: “It is unclear in the Fifth Circuit whether a showing of trademark infringement creates a presumption of irreparable harm, but in this case it is unnecessary to decide that issue because there is evidence of irreparable harm.”

Will he issue an injunction? Stay tuned to Five Minute Law to find out.



Zach Wolfe is a Texas trial lawyer who handles non-compete and trade secret litigation (and sometimes even trademark litigation) at his firm Fleckman & McGlynn, PLLC.

His references to arguments made in the lawsuit are not endorsements of the arguments. Any opinions expressed are his own, not the opinions of his firm or clients. Every case is different, so don’t rely on this post as legal advice for your case.

[1] Bd. of Regents of the Univ. of Houston Sys. v. Houston College of Law, Inc., No. 4:16-cv-01839 (S.D. Tex. 2016).

[2] Florida Int’l Univ. Bd. of Trustees v. Florida Nat. Univ., Inc., No. 15-11509, 2016 WL 4010164 (11th Cir. July 26, 2016).

[3] Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 329 (5th Cir. 2008).

[4] This was an actual case: Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188 (5th Cir. 1998).

[5] eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 393-94 (2006).