Geographic Separation Alone Does Not Defeat Likelihood of Confusion When National Internet Marketing and Reputation Create Overlapping “Zones”

1. Introduction

This Lanham Act dispute pits two senior-living providers using “Westmont” in the names of their facilities. Westmont Living, Inc. (senior user) operates retirement and assisted living facilities in California and Oregon under federally registered “Westmont Living” marks and markets nationally online. Retirement Unlimited, Inc. (“RUI”) (junior user) operates facilities in Virginia, North Carolina, and Florida and opened a Richmond-area facility named “The Westmont at Short Pump.”

The central issue on appeal was narrow but consequential: whether the district court could hold, as a matter of law at summary judgment, that consumer confusion was “impossible” solely because the parties’ physical facilities are on opposite coasts. The district court treated Dawn Donut Co. v. Hart's Food Stores, Inc. as dispositive and bypassed the Fourth Circuit’s standard multi-factor likelihood-of-confusion analysis.

2. Summary of the Opinion

In short, Dawn Donut was treated as a limited, fact-bound principle applicable when concurrent use occurs in truly separate markets, including confined advertising/marketing—conditions not established here.

3. Analysis

3.1 Precedents Cited

The opinion’s reasoning is built on three layers of authority: (i) the Supreme Court’s articulation of trademark law’s core aims, (ii) Fourth Circuit likelihood-of-confusion doctrine, and (iii) geographic-market cases (including Dawn Donut) and “reputation-over-distance” authorities illustrating why geography is not a single-factor trump card.

• Jack Daniel's Props., Inc. v. VIP Prods. LLC, 599 U.S. 140 (2023): The panel invoked the Supreme Court’s description of source confusion as trademark law’s “bête noire,” framing confusion and goodwill diversion as the harms at stake—particularly salient where senior-living decisions hinge on reputation and reviews.
• Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651 (4th Cir. 2018) and CareFirst of Md., Inc. v. First Care, P.C., 434 F.3d 263 (4th Cir. 2006): These cases provided the canonical infringement elements: valid mark + likelihood of confusion. The Fourth Circuit treated validity as undisputed and focused entirely on the confusion inquiry the district court effectively short-circuited.
• RXD Media, LLC v. IP Application Dev. LLC, 986 F.3d 361 (4th Cir. 2021); Grayson O Co. v. Agadir Int'l LLC, 856 F.3d 307 (4th Cir. 2017); and Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144 (4th Cir. 2012): These opinions supply and reinforce the Fourth Circuit’s nine-factor likelihood-of-confusion framework. The panel’s core criticism of the district court is procedural and methodological: it did not meaningfully engage the factor analysis at all.
• Synergistic Int'l, LLC v. Korman, 470 F.3d 162 (4th Cir. 2006) and Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316 (4th Cir. 1992): These decisions caution against treating the factors as a rigid formula, but they also underscore that a court must assess the “catalog” of relevant considerations rather than elevate a single consideration into a dispositive rule (as the panel found happened here with geography).
• What-A-Burger of Va., Inc. v. Whataburger, Inc. of Corpus Christi, 357 F.3d 441 (4th Cir. 2004): This was the Fourth Circuit’s closest analog on territorial markets. Importantly, What-A-Burger recognized that separate territorial markets and no expansion plans “raise significant doubt” about confusion, but it explicitly warned that confusion analysis does not “begin and end” with geography—especially where a senior mark’s reputation extends into a trade area, “not uncommon in cyberspace.” The panel used this cautionary language to show that Fourth Circuit law does not support the district court’s “confusion impossible” conclusion.
• Pizzeria Uno Corp. v. Temple, 747 F.2d 1522 (4th Cir. 1984): Used to illustrate that geographic differences can affect the weight of specific factors (e.g., advertising overlap), but not eliminate the overall inquiry. The panel highlighted that even where ads are in different areas, the factor is simply “not of decisive importance,” not irrelevant.
• Dawn Donut Co. v. Hart's Food Stores, Inc., 267 F.2d 358 (2d Cir. 1959): The opinion recast Dawn Donut as a narrow rule: when both retail use and advertising are confined to distinct markets and there is no present prospect of expansion into the junior user’s trading area, then an injunction may be unwarranted because confusion is unlikely. The Fourth Circuit stressed that Dawn Donut does not license courts to ignore modern, cross-territory marketing realities (especially online), nor does it establish that facility distance makes confusion “impossible.”
• Cir. City Stores, Inc. v. CarMax, Inc., 165 F.3d 1047 (6th Cir. 1999) (Jones, J., concurring): Cited for the observation that the “Dawn Donut Rule” arose in 1959 and sits uneasily with modern mobility and the Internet’s erosion of geographic marketing barriers. The Fourth Circuit used this point to contextualize why a mechanical territorial rule is less persuasive today.
• Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922 (4th Cir. 1995): Cited to establish that the same likelihood-of-confusion showing governs Lanham Act unfair competition and Virginia trademark/unfair competition claims.
• Authorities on confusion beyond direct competition and beyond “which location am I at”: Commc'ns Satellite Corp. v. Comcet, Inc., 429 F.2d 1245 (4th Cir. 1970) (no need to show actual sales loss); Champions Golf Club, Inc. v. The Champions Golf Club, Inc., 78 F.3d 1111 (6th Cir. 1996) (affiliation confusion matters); and Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609 (7th Cir. 1965) (no need for direct competition or same size/market for relief). These cases supported the panel’s insistence that reputational harm and affiliation confusion can occur even when customers ultimately know the physical location they are choosing.
• “Reputation-over-distance” exemplars (cited via the McCarthy treatise) showing that distinct locales do not preclude confusion: Brass Rail, Inc. v. Ye Brass Rail of Mass., Inc., 43 F. Supp. 671 (D. Mass 1938); Caesars World, Inc. v. Caesar's Palace, 490 F. Supp. 818 (D.N.J. 1980); Ambassador East, Inc. v. Shelton Corners, Inc., 120 F. Supp. 551 (S.D.N.Y. 1954); Ritz Carlton Hotel Co. v. Ritz Carlton Hotel Corp., 66 F. Supp. 720 (S.D. Fla. 1946); and Stork Rest. v. Sahati, 166 F.2d 348 (9th Cir. 1948). The Fourth Circuit used these to underscore a doctrinal through-line: where reputation and advertising travel, confusion can travel too.

3.2 Legal Reasoning

The panel’s logic proceeds in four steps.

1. Likelihood of confusion is the operative question under 15 U.S.C. § 1114, and it protects goodwill and consumer choice. The court reiterated that actionable confusion includes confusion as to affiliation, connection, or sponsorship, not merely “source,” and does not require proof of lost sales or even actual confusion to exist in the marketplace.
2. The Fourth Circuit has an established nine-factor framework (from RXD Media, LLC v. IP Application Dev. LLC) and has repeatedly warned that the factors are flexible, but they remain the doctrinal vehicle for answering the statutory question. A district court may not convert one consideration—here, physical facility location— into a dispositive legal rule when record evidence could implicate other factors (advertising overlap, facilities similarity, intent, actual confusion, sophistication, etc.).
3. Geography is relevant but not conclusive. The opinion recognized that “similarity in scope of geographic markets” and “area and manner of concurrent use” may be embedded in the factor analysis (citing What-A-Burger of Va., Inc. v. Whataburger, Inc. of Corpus Christi), but it stressed that the analysis does not “begin and end” with geography—especially where reputation and marketing reach beyond local borders.
4. Dawn Donut is limited to its factual premise: separate markets where use and advertising are confined locally and there is no present prospect of expansion. The Fourth Circuit held that those premises were not established here because the record showed national online marketing and consumer exposure across states (including the states where RUI operates), adjacency in search results, third-party referral-site ordering, and survey evidence indicating substantial confusion.

Procedurally, the panel did not decide that confusion existed as a matter of law; it held that the district court erred by declaring confusion “impossible” without conducting the required, circumstance-sensitive likelihood-of-confusion analysis. The remedy was vacatur and remand.

3.3 Impact

This published decision meaningfully clarifies Fourth Circuit trademark practice in three ways:

• Limits mechanical “territorial remoteness” defenses in service industries. Defendants offering location-bound services (senior living, hospitality, dining, clubs) cannot rely on facility distance alone when they market nationally or when their reputations draw consumers across state lines.
• Re-centers modern confusion analysis on consumer encounter points. The decision treats online search, referral platforms, and national digital advertising as potentially creating overlapping “markets” for confusion purposes—even where performance of the service is local.
• Raises the evidentiary importance of digital context and survey evidence. The opinion’s recitation of Google adjacency, third-party site ordering, and a confusion survey signals that courts should evaluate how consumers actually find and compare providers today—particularly for high-stakes decisions (like senior living) that begin with online research and family involvement.

Practically, the remand invites fuller engagement with factors such as similarity of marks, similarity of services, similarity of advertising channels, intent (including notice via the PTO refusal), actual confusion evidence, and the sophistication and decision-making process of senior-living consumers and their family members.

4. Complex Concepts Simplified

• “Likelihood of confusion”: A forward-looking probability that ordinary consumers (including potential customers) will mistakenly believe two offerings come from the same source or are affiliated. Proof of actual mistaken purchases is not required.
• Affiliation/sponsorship confusion: Even if a consumer knows the facility is in Virginia (not California), confusion can still exist if the consumer believes the Virginia facility is part of, endorsed by, or connected to the California/Oregon brand.
• Territorial “zones” (sales, advertising, reputation, expansion): A mark’s real-world footprint is not only where the business operates physically; it can include where it advertises, where its reputation is known, and where it is likely to expand. Online marketing can enlarge the advertising and reputation zones nationally.
• Dawn Donut (in plain terms): If two businesses truly operate and advertise locally in separate places with no realistic overlap, confusion is unlikely and an injunction may not be warranted. But it is not a universal rule that distance defeats confusion—especially where advertising and reputation overlap.
• Nine-factor test (Fourth Circuit): A structured way to answer the statutory question of confusion by looking at real marketplace conditions (mark strength, similarity, services, channels, intent, evidence of confusion, etc.). Not every factor matters in every case, but the court must consider those that do.

5. Conclusion

Westmont Living, Inc. v. Retirement Unlimited, Inc. establishes (or, more precisely, crystallizes as a published Fourth Circuit holding) that geographic separation of physical service locations cannot, by itself, render consumer confusion “impossible” where record evidence shows national internet marketing, cross-state customer draw, and brand reputation that may create overlapping consumer encounter zones.

The key takeaway for litigants is methodological: courts must not substitute a territorial shortcut for the likelihood-of-confusion inquiry. On remand, the dispute returns to the fact-intensive assessment the Lanham Act requires, guided by the Fourth Circuit’s nine factors and attentive to modern digital market realities.