Americash Loans, LLC v. AO Ventures, LLC, No. 08 C 5147 (N.D. Ill. Mar. 19, 2009) (Der-Yeghiayan, J.).

Judge Der-Yeghiayan denied defendant AO Ventures (“AOV”) motion to dismiss plaintiff Americash Loans’ Lanham Act and related state law claims. Americash Loans alleged that AOV infringed Americash Loans’ “Americash Loans” mark by advertising confusingly similar mark on AOV’s website. First, the Court held that Americash Loans’ prior settlement of a trademark dispute with a third party did not preclude this suit. The prior suit involved a different mark, “Americash,” and Americash Loans did not allege that AOV was acting as an agent of the third party involved in the earlier settlement when it allegedly used the infringing marks.

The Court also held that the fact that AOV was not accused of using the exact mark, but a confusingly similar mark was not grounds to dismiss the complaint. The Court noted that customer confusion between similar marks was a recognized part of trademark infringement analysis and that suits were routinely filed alleging infringement based upon the use of marks that were not identical to the asserted trademark.

Further, the Court held that whether AOV’s display of a third party’s advertisement was a use of the accused mark was a question of fact that could not be resolved by a Rule 12 motion. Finally, the Court held that it could not decide whether AOV’s alleged infringement was a nominative fair use of Americash Loans’ mark because any fair use analysis involves questions of fact.