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a jury could find that defendant’s decision to offer a large cash prize to the purchaser of the vehicle, absent any assurances of brand endorsement, was a deliberate attempt to capitalize on the goodwill of a competitor. Plaintiff has satisfactorily raised the inference that defendant’s commercial self-interest was the determining factor in defendant’s offer of the prize and that the prize was designed to create consumer confusion.[7] Plaintiff has therefore succeeded in presenting a triable issue of fact as to the likelihood of confusion.
4. The Strength of Plaintiff’s Trademarks
The strength of plaintiff’s marks may also be probative of the likelihood of confusion. Both parties’ marks, however, are found to be quite weak in this case. As discussed above, plaintiff’s decision to extend its mark to include “H.O.T.S. M.O.S.” sign and logo gave it a weak mark only as to those products to which the *1420 mark was applied.[8] Furthermore, plaintiff’s mark is now confined to a much narrower product line. The services plaintiff actually offers to the consuming public are essentially the same as those of the defendant. Only a small number of retailers sell plaintiff’s services, and their expanded offerings are not substantially different from those sold by defendant. Defendant’s “Hot Shop” is vastly more extensive than the services plaintiff offers and is sold by a far greater number of retailers. Plaintiff’s decision to apply its mark to an expanded product line did not enhance its marks’ strength because the marks that plaintiff did not use, i.e., “Hot Shop” and “Hot Shop M.O.S.”, were not applied to a corresponding expanded product line. Thus, the fact that plaintiff has not expended time and effort to develop a nationwide reputation for the “Hot Shop” mark or its M.O.S. logo does not indicate that plaintiff’s mark has significant consumer recognition.[9]See Subway, 684
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