RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0221p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

GENERAL MOTORS CORPORATION,

Plaintiff-Appellant,

v.

KEYSTONE AUTOMOTIVE INDUSTRIES, INC., and

TONG YANG INDUSTRY COMPANY, LIMITED,

Defendants-Appellees.

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No. 05-1712

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 02-74587—Nancy G. Edmunds, District Judge.

Argued: April 27, 2006

Decided and Filed: June 30, 2006 

Before: KEITH, MERRITT, and DAUGHTREY, Circuit Judges.

_________________

COUNSEL

ARGUED: Ernie L. Brooks, BROOKS KUSHMAN, P.C., Southfield, Michigan, for Appellant.

Thomas N. Young, YOUNG & BASILE, P.C., Troy, Michigan, Robert M. Kalec, DEAN &

FULKERSON, P.C., Troy, Michigan, for Appellees. ON BRIEF: Ernie L. Brooks, Robert C.J.

Tuttle, Frank A. Angileri, Marc Lorelli, BROOKS KUSHMAN, P.C., Southfield, Michigan, for

Appellant. Thomas N. Young, Thomas E. Bejin, YOUNG & BASILE, P.C., Troy, Michigan, Robert

M. Kalec, DEAN & FULKERSON, P.C., Troy, Michigan, for Appellees. 

_________________

OPINION _________________

MERRITT, Circuit Judge. Plaintiff General Motors Corporation (“GM”) sued defendants

Tong Yang Industry Company, Limited (“Tong Yang”), a Taiwanese manufacturer of automobile

replacement grilles bearing two GM trademarks, and Keystone Automotive Industries, Inc.

(“Keystone”), a distributor of Tong Yang’s grilles, for trademark infringement and unfair

competition. On the issue of likelihood of confusion –– the sole issue on appeal –– the District

Court granted summary judgment in favor of the defendants and denied GM’s motion for summary

judgment. We agree with the District Court that there is no likelihood of confusion “at the point of

sale” to body shops and on the internet. We disagree and reverse and remand on the issue of

1
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likelihood of “downstream” consumer confusion due to genuine disputes of material fact regarding

the visibility of the allegedly infringing portion of the grilles.

I. BACKGROUND

GM, currently the world’s largest automaker, manufacturers and sells replacement parts for

its vehicles. Tong Yang produces and sells aftermarket replacement parts for automobiles, including

some manufactured by GM. Tong Yang sells these parts to distributors like Keystone, which in turn

sells most of the parts to collision repair shops (including some owned by GM) and also sells some

parts to individuals over the internet. 

GM owns registered trademarks in the Chevrolet “bow tie” design and the “GMC” design.

The instant case arose out of Tong Yang’s manufacturing and Keystone’s distribution of

replacement grilles with “placeholders” bearing these two designs. See Exhibits A and B.

For Chevrolets, the placeholder is a recessed space on the front of the grille in the shape of

a bow tie in which a heavy plastic GM “bow tie” emblem is inserted. For GMC vehicles, the

placeholder is a raised pedestal upon which a red-lettered “GMC” emblem is mounted. Each

emblem is a separate part always purchased from GM and is secured to the placeholder with studs

or pins extending from the back of the emblem so as to pass through holes in the placeholder. After

inserted and secured in the placeholder of a Chevrolet grille, the “bow tie” emblem partially or

wholly fills the “bow tie” recess. Similarly, when mounted onto a placeholder of a GMC grille, the

“GMC” emblem wholly or partially covers the underlying “GMC” logo on the placeholder. See

Exhibits C and D. 

After GM filed suit, Tong Yang changed its grilles to remove the trademarked “bow tie” and

“GMC” designs from its placeholders. These modifications have apparently decreased demand for

the Tong Yang grilles. 

GM’s complaint alleges that the defendants’ use of the trademarks constitutes: (1) trademark

infringement under 15 U.S.C. § 1114(1); (2) unfair competition under 15 U.S.C. § 1125(a)(1);

(3) trademark infringement under Michigan common law; and (4) unfair competition under

Michigan common law. The parties submitted cross-motions for summary judgment on the

dispositive issue for all these claims –– whether the defendants’ use of the trademarks is likely to

cause confusion as to the origin or sponsorship of the replacement grilles, i.e., that GM

manufactured or sponsored the manufacture of the defendants’ grilles. The District Court granted

summary judgment in favor of the defendants, holding that there is no likelihood of confusion. This

appeal ensued. 

II. STANDARD OF REVIEW

This Court reviews de novo a district court’s grant of summary judgment on claims of

trademark infringement or unfair competition. Gibson Guitar Corp. v. Paul Reed Smith Guitars,

LP, 423 F.3d 539, 546 (6th Cir. 2005). Summary judgment should be granted whenever “there is

no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a

matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)). We draw all reasonable inferences in favor of

the non-moving party. Id. 

III. LIKELIHOOD OF CONFUSION

GM’s trademark infringement and unfair competition claims under state and federal law are

closely related, and their resolution hinges on the central issue of likelihood of confusion: 
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 [T]rademark infringement is a type of unfair competition . . . . 

In many factual situations, the same result is reached whether the legal wrong is

called trademark infringement or unfair competition. In such cases the courts often

lump them together and speak of them as identical concepts. Today, the keystone

of that portion of unfair competition law which relates to trademarks is the avoidance

of a likelihood of confusion in the minds of the buying public. Whatever route one

travels, whether by trademark infringement or unfair competition, the signs give

direction to the same enquiry—whether defendant’s acts are likely to cause

confusion.

J. Thomas McCarthy, 1 McCarthy on Trademarks and Unfair Competition §§ 2:7-2:8 (4th ed. 1996);

see also AutoZone, Inc. v. Tandy Corp., 373 F.3d 786, 791 (6th Cir. 2004) (noting that federal

trademark and unfair competition claims require the likelihood of confusion inquiry); Champions

Golf Club, Inc. v. The Champions Golf Club, Inc., 78 F.3d 1111, 1123 (6th Cir. 1996) (“[F]alse

designation is simply a species of unfair competition . . . That the two claims are one and the same

is made clear both by the language of the statute, and by many cases.”); Carson v. Here’s Johnny

Portable Toilets, Inc., 698 F.2d 831, 833 (6th Cir. 1983) (stating that Michigan common law unfair

competition claims use the same likelihood of confusion test as the Lanham Act); K’Arsan Corp.

v. Christian Dior Perfumes, Inc., No. 97-1867, 1998 WL 777987, at *8 (6th Cir. Oct. 21, 1998)

(unpublished) (stating that the likelihood of confusion inquiry applies to claims of unfair competition

and of trademark infringement under Michigan common law).

Our Court employs an eight-factor test for determining likelihood of confusion: 

1. strength of the plaintiff’s mark;

2. relatedness of the goods;

3. similarity of the marks;

4. evidence of actual confusion;

5. marketing channels used;

6. likely degree of purchaser care;

7. defendant’s intent in selecting the mark; [and]

8. likelihood of expansion of the product lines.

Tumblebus Inc. v. Cranmer, 399 F.3d 754, 764 (6th Cir. 2005) (quoting Frisch’s Rests., Inc. v.

Elby’s Big Boy of Steubenville, Inc., 670 F.2d 642, 648 (6th Cir. 1982)). Even though a court must

balance these factors when evaluating likelihood of confusion, id., not all of them are necessarily

helpful in any given case, see Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 109 F.3d 275, 280 (6th Cir. 1997). Moreover, this list, though generally the predominate focus of

analysis, is not exhaustive, and “[o]ther variables may come into play depending on the particular

facts presented.” AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348 n.11 (9th Cir. 1979).

This Court has joined the vast majority of courts in extending the likelihood of confusion

inquiry beyond only the point of sale. See Ferrari S.P.A. Esercizio v. Roberts, 944 F.2d 1235, 1245

(6th Cir. 1991); 3 McCarthy, supra, at § 23:5. Accordingly, we will first address likelihood of

confusion at the point of sale before venturing downstream. 

A. Point-of-Sale Confusion

Likelihood of confusion at the point of sale involves a purchaser’s confusion as to a

product’s origin or sponsorship occurring at the time of purchase. 3 McCarthy, supra, at § 23:5.

The points of sale for most of Tong Yang’s grilles are collision repair shops, but some are sold
No. 05-1712 General Motors Corp. v. Keystone

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Page 4

directly to individuals over the internet. We need not exhaustively apply the eight-factor test to

reach the rather obvious conclusion that there is no likelihood of confusion at the point of sale

because buyers are expressly informed that they are not purchasing GM grilles. 

There can be no likelihood of confusion at the point of sale where a defendant conspicuously

and unequivocally informs buyers that the defendant, and not the plaintiff, is the source of the

product. In Ferrari S.P.A. Esercizio, this Court noted that there was no likelihood of point-of-sale

confusion where a manufacturer of “knockoff” Ferraris informed his purchasers that his significantly

cheaper cars were not genuine Ferraris. 144 F.2d at 1244-45. Similarly, customers knowing they

are purchasing a knockoff designer purse or Rolex watch simply do not confuse the counterfeit with

the original. See Hermes Int’l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 107-08 (2d Cir.

2000); Rolex Watch U.S.A., Inc. v. Canner, 645 F. Supp. 484, 487-88 (S.D. Fla. 1986). 

Likewise, in the instant case, no purchaser has reason to be confused as to the origin of the

replacement grilles. Collision repair shops ordering Tong Yang parts do so intentionally and

generally at the bidding of insurance companies because non-original equipment is less expensive

and reduces the cost of repairing a vehicle. Moreover, GM grilles are made by Siegel-Robert, Inc.,

and carry the molded letters “SRI” to identify their origin, whereas Tong Yang grilles are marked

“OTN” and “Made in Taiwan.” In addition, Tong Yang grilles are shipped in boxes and packaging

markedly different from those containing GM grilles with conspicuous logos of Tong Yang and/or

Keystone. The invoice accompanying Tong Yang parts conspicuously carries the following

disclaimer: 

THESE REPLACEMENT PARTS ARE NOT MANUFACTURED BY THE

ORIGINAL MANUFACTURER. THESE PARTS ARE REPLACEMENT FOR

THE OEM PARTS, AND MANUFACTURED IN TAIWAN FOR NORTH

AMERICA MARKET.

(J.A. at 0373, 0382.) An automobile owner would have to possess complete ignorance of this

disclaimer, her insurance contract, and ordinary automobile repair practices to be confused as to the

origin of a Tong Yang grille when getting her vehicle repaired. Individuals purchasing grilles

directly from Keystone over the internet receive the same source information as collision repair

shops and likewise could scarcely be confused. In short, the transparent and conspicuous indications

that Tong Yang manufactured its grilles make confusion at the point of sale all but impossible. 

B. Downstream Confusion

In addition to point-of-sale confusion, the Sixth Circuit recognizes that a likelihood of

downstream confusion, also called “post-sale” confusion, is actionable: “Since Congress intended

to protect the reputation of the manufacturer as well as to protect purchasers, the Act’s protection

is not limited to confusion at the point of sale.” Ferrari S.P.A. Esercizio, 944 F.2d at 1245; see also

3 McCarthy, supra, at § 23:5. Thus, injection of knockoffs into the stream of commerce may lead

to a likelihood of confusion among the general public. To assess the likelihood of downstream

confusion, we first apply the eight-factor test and then discuss the potential harm from the influx of

Tong Yang’s grilles into the stream of commerce. 

1. Eight-Factor Test

Applying the eight-factor test to this case favors a finding of likelihood of confusion among

the general viewing public. 
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i. Strength of the Plaintiff’s Mark

It is beyond dispute that Chevrolet’s “bow tie” and the “GMC” design are strong trademarks

in that the public readily accepts them as hallmarks of GM. See Frisch’s Rest., Inc. v. Shoney’s Inc., 759 F.2d 1261, 1264 (6th Cir. 1985); see also Champions Golf Club, Inc., 78 F.3d at 1116-18. This

factor, therefore, favors a likelihood of confusion. 

ii. Relatedness of the Goods

The goods are at least somewhat closely related. Our Court has adopted the following three

categories of cases for assessing the relatedness of goods: 

(1) direct competition of [goods], in which case confusion is likely if the marks are

sufficiently similar; (2) [goods] are somewhat related but not competitive, so that

likelihood of confusion may or may not result depending on other factors; and

(3) [goods] are totally unrelated, in which case confusion is unlikely . . . These

categories are helpful in gauging how important relatedness may be in the ultimate

likelihood of confusion determination.

Homeowners Group, Inc. v. Home Mktg. Specialists, Inc., 931 F.2d 1100, 1108 (6th Cir. 1991)

(internal citation omitted). The goods are identical in that, as the District Court noted, “both parties

produce replacement grilles for the same GM vehicles.” (J.A. at 0165.) The grilles, however, are

generally not directly competitive because, again in the words of the District Court, “the parties

generally sell their goods to different buyers.” (Id.) Accordingly, this factor also favors GM. 

iii. Similarity of the Marks

In general, “[s]imilarity of marks is a factor of considerable weight.” Daddy’s Junky Music

Stores, Inc., 109 F.3d at 283. The trademarks at issue are virtually identical apparently with only

trivial differences. This factor further points towards a likelihood of confusion. 

iv. Evidence of Actual Confusion

For obvious reasons, evidence of actual confusion is the most important factor in assessing

a likelihood of confusion. Id. at 284. Due to the rarity of this type of evidence, however, this factor

is weighed heavily only when such evidence exists. Id. GM has “theorized possible methods for

Defendants’ customers to defraud subsequent purchasers” and has cited an instance where a collision

repair shop attempted unsuccessfully to return to GM a grille manufactured neither by GM nor Tong

Yang (J.A. at 0167), but GM has not proved that any member of the general public has mistaken a

Tong Yang grille for a GM grille. Thus, GM has not presented evidence of actual confusion. 

v. Marketing Channels Used

“This factor . . . consists of considerations of how and to whom the respective goods or

services of the parties are sold.” Homeowners Group, Inc., 931 F.2d at 1110. This factor involves

two considerations: (1) whether the parties use the same means to market the product, and (2)

whether the “predominant customers” are the same. Daddy’s Junky Music Stores, Inc., 109 F.3d at

285. There is less likelihood of confusion “if the services of one party are sold through different

marketing media in a different marketing context than those of another seller.” Homeowners Group,

Inc., 931 F.2d at 1110. The same is true “[i]f one mark user sells exclusively at retail and the other

exclusively to commercial buyers . . . since no one buyer ever buys both products.” Id. (quoting 2

McCarthy, supra, at § 24:7 (2d ed. 1984)). Since this factor focuses on the point of sale, it has little

bearing on the question of downstream confusion. See Ferrari S.P.A. Esercizio, 944 F.2d at 1245.
No. 05-1712 General Motors Corp. v. Keystone

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1

After this suit was instituted, Tong Yang modified its grilles to remove the trademarked “bow tie” and “GMC”

designs from the placeholders. GM argues that these modifications show Tong Yang’s intent to copy the GM

trademarks. The District Court properly excluded this subsequent remedial evidence under Fed. R. Evid. 407. 

vi. Likely Degree of Purchaser Care

This factor involves assessing (1) the type of goods at issue, and (2) the level of

sophistication of the purchaser. As to the first inquiry, “when services are expensive or unusual, the

buyer can be expected to exercise greater care in her purchases,” and there is accordingly less

likelihood of confusion. Homeowners Group, Inc., 931 F.2d at 1111. A sophisticated purchaser

exercises a high degree of care and is less likely to be confused as to a product’s origin. Id. This

factor also focuses on the point of sale and is, therefore, generally inapplicable to downstream

confusion. See Ferrari S.P.A. Esercizio, 944 F.2d at 1245. 

vii. Defendant’s Intent in Selecting the Mark

“If a party chooses a mark with the intent of causing confusion, that fact alone may be

sufficient to justify an inference of confusing similarity.” Homeowners Group, Inc., 931 F.2d at

1111. “Intent is relevant because purposeful copying indicates that the alleged infringer, who has

at least as much knowledge as the trier of fact regarding the likelihood of confusion, believes that

his copying may divert some business from the senior user.” Daddy’s Junky Music Stores, Inc., 109

F.3d at 286. Intent can be proven by direct or circumstantial evidence. Id. There can be little

question that Tong Yang intentionally copied GM’s trademarks. Tong Yang reverse engineers the

grilles to look as close as possible to the original equipment manufactured by GM. Accordingly,

this factor favors GM.1

 

viii. Likelihood of Expansion of the Product Lines

[A] ‘strong possibility’ that either party will expand his business to compete with the other

or be marketed to the same consumers will weigh in favor of finding that the present use is

infringing.” Homeowners Group, Inc., 931 F.2d at 1112. Expansion could be geographic or an

increase in products or services. Daddy’s Junky Music Stores, Inc., 109 F.3d at 287. The District

Court noted that there is no evidence that either party plans to expand its grille manufacturing

business. Accordingly, this factor favors the defendants.

In sum, although the eight-factor test is arguably less important in assessing downstream

confusion than point-of-sale confusion since two of the factors (5 and 6) focus on the point of sale,

see Ferrari S.P.A. Esercizio, 944 F.2d at 1245, the analysis favors a likelihood of downstream

confusion here because, of the remaining six factors, four (1, 2, 3 and 7) favor GM, and only two

(4 and 8) favor Tong Yang. 

2. Downstream Harm

Our review of cases discussing the harm of injecting knockoffs into the stream of commerce

further signals the likelihood of downstream confusion in this case. Even without point-of-sale

confusion, knockoffs can harm the public and the original manufacturer in a number of ways,

including: (1) the viewing public, as well as subsequent purchasers, may be deceived if expertise

is required to distinguish the original from the counterfeit, see Hermes, 219 F.3d at 108; (2) the

purchaser of an original may be harmed if the widespread existence of knockoffs decreases the

original’s value by making the previously scarce commonplace, see id.; (3) consumers desiring high

quality products may be harmed if the original manufacturer decreases its investment in quality in

order to compete more economically with less expensive knockoffs, see United States v. Torkington,
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2

It is worth emphasizing that GM seeks relief only under the laws of trademark and unfair competition. Other

legal theories, such as the laws of patent and trade dress, also offer protection for certain attributes of products. 

812 F.2d 1347, 1353 n.6 (11th Cir. 1987); (4) the original manufacturer’s reputation for quality may

be damaged if individuals mistake an inferior counterfeit for the original, see Ferrari S.P.A.

Esercizio, 944 F.2d at 1244-45; (5) the original manufacturer’s reputation for rarity may be harmed

by the influx of knockoffs onto the market, see id.; and (6) the original manufacturer may be harmed

if sales decline due to the public’s fear that what they are purchasing may not be the original, see

Hermes, 219 F.3d at 108. On the other hand, courts should be wary of overprotecting public domain

ideas and works whose exploitation can lead to economic efficiency, greater competition, and lower

costs for consumers.2

 Cf. 1 McCarthy, supra, at § 2:2 (reciting the policies underlying the laws of

trademark and unfair competition).

Applying these principles in Ferrari S.P.A. Esercizio, this Court upheld the verdict of a

bench trial enjoining the production of knockoff Ferrari automobiles which could damage Ferrari’s

reputation for quality and rarity. 944 F.2d at 1245. Other courts have reached similar conclusions

in cases involving knockoff Rolex watches, Rolex Watch U.S.A., 645 F. Supp. at 488, designer

purses, Hermes, 219 F.3d at 108, and other products, see 3 McCarthy, supra, at § 23:7.

The instant case carries similar potential for downstream confusion and corresponding harm

to GM and the public –– if the public can actually see the underlying placeholders after the “bow

tie” or “GMC” emblems are affixed to the grilles. Unaided by the defendants’ conspicuously

marked packaging, the invoice disclaimer, or a collision shop’s expertise, the viewing public could

mistake a Tong Yang grille for a GM grille. Such confusion could damage GM’s reputation for

quality if the public associates any inferior attributes (e.g., improper fit or cracking) of Tong Yang’s

grilles with GM. Other types of possible downstream harm, such as that resulting from a product’s

reduced scarcity, however, are largely inapplicable to this case. Nonetheless, visibility of the

placeholder after the automobile is repaired and returned to the road may harm the public and GM.

3. Visibility of Placeholder After GM Emblem Is Affixed

If the placeholder cannot be seen after the Chevrolet “bow tie” or “GMC” emblem is affixed,

the wholly hidden placeholder cannot cause downstream confusion as to origin or sponsorship.

After all, that which defies perception cannot confuse. Cf. Polo Fashions, Inc. v. Craftex, Inc., 816

F.2d 145, 148 (4th Cir. 1987) (In a suit involving knockoff Polo shirts, the placement of the

defendant’s mark inside the back of the neck of each shirt did not prevent a likelihood of confusion

stemming from the defendant’s placement of the Polo trademark on the front of each shirt.); Lois

Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 631 F. Supp. 735, 747 (S.D.N.Y. 1985), aff’d, 799

F.2d 867 (2d Cir. 1986) (“Because the mark is consistently visible to the purchasing public as a

constant advertisement of the product on which an evaluation of it is affixed, the similarity of the

marks in a post-sale setting must be taken into consideration.”).

The parties dispute whether the placeholder can be seen after the emblem is secured. GM

maintains that the placeholder remains visible:

The molded marks are readily visible to the car owner when the grille is installed

. . . [T]he molded “bow tie” trademark surrounds the medallion to present a

proportioned trademark in comparison to the size of the grille. The molded “GMC”

trademark is likewise undeniably visible, projecting a three dimensional mark with

the medallion on the front surface of the molded GMC . . . .
No. 05-1712 General Motors Corp. v. Keystone

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Keystone admitted that the molded GMC in the grille could be seen:

Q: The next sentence says: [“]The placeholder . . . for the grille

cannot even be seen.[”] You can see the placeholder as a GMC

factory grille, true?

A: Yes.

(GM Final Brief at 35.)

On the other hand, Tong Yang argues that “[o]nce the trademark emblem is attached, only

the emblem, and not the placeholder, is visible.” (Tong Yang Final Brief at 6.) Keystone appears

to take a middle ground, stating that “the mounted emblem hides virtually all of the accused receiver

structure.” (Keystone Final Brief at 6.) 

The District Court improperly resolved in favor of the defendants this factual dispute

regarding the visibility of the placeholders after each emblem is affixed. If the placeholders remain

visible, the related question is raised whether the placeholders are sufficiently visible to cause a

likelihood of confusion. These genuine disputes of material fact render summary judgment

inappropriate, a common disposition in evaluating likelihood of confusion. See Clicks Billiards, Inc.

v. Sixshooters, Inc., 251 F.3d 1252, 1267 (9th Cir. 2001) (quoting Levi Strauss & Co. v. Blue Bell,

Inc., 778 F.2d 1352, 1356 n.5 (9th Cir. 1985) (“This case underscores our warning that ‘trial courts

disfavor deciding trademark cases in summary judgments because the ultimate issue is so inherently

factual.’ ” ).

IV. CONCLUSION

We hold that the defendants’ use of GM’s Chevrolet “bow tie” and “GMC” trademarks does

not pose a likelihood of point-of-sale confusion. We also hold that there are genuine disputes of

material fact regarding whether the defendants’ placeholders remain visible after the “bow tie” or

“GMC” emblem is affixed to the defendants’ replacement grilles, and, if so, whether that visibility

is sufficient to create a likelihood of downstream confusion. Accordingly, we reverse the District

Court’s grant of summary judgment in favor of the defendants and denial of GM’s motion for

summary judgment. We remand this case for further proceedings consistent with this opinion.
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GM’s Chevrolet“Bow-Tie” Placeholder

GM’s “GMC” Placeholder

Tong Yang’s “Bow-Tie” Placeholder

Tong Yang’s “GMC” Placeholder

APPENDIX

Exhibit A: Tong Yang Grille with “GMC” Logo on Placeholder

Exhibit B: Closeups of Parties’ Placeholders

Exhibit C: GM Grille with “GMC” Emblem Attached Upon Placeholder

Exhibit D: Tong Yang Grille with “GMC” Emblem Attached Upon Placeholder