IP Law Daily, TRADEMARK—9th Cir.: Foxy Lady loses appeal over coast-to-coast trademark clash, (Apr 8, 2026)

By George Basharis, J.D.

Geographic distance, a weak mark, and differences in branding defeated a Rhode Island strip club’s bid for default judgment against a Washington bikini coffee shop using the Foxy Lady name.

Cross-country use of the “Foxy Lady” name was insufficient to establish a likelihood of confusion. As a result, Gulliver’s Tavern, Inc., d/b/a Foxy Lady, was not entitled to default judgment on its trademark and related claims against Foxy Lady, Inc., d/b/a Foxy Lady Coffee. The Ninth Circuit affirmed, concluding that the district court did not clearly err in finding the marks insufficiently similar, the goods not sufficiently proximate in the relevant market, and the FOXY LADY mark “presumptively weak” in western Washington (Gulliver’s Tavern, Inc. d/b/a Foxy Lady v. Foxy Lady, Inc. d/b/a Foxy Lady Coffee, No. 24-5629 (9th Cir. Apr. 3, 2026)).

The case arises from the use of the name “Foxy Lady” by businesses in Rhode Island and Washington. Gulliver’s Tavern, operator of the Foxy Lady strip club in Providence, Rhode Island, sued a western Washington “bikini barista establishment” using the registered marks FOXY LADY LATTE and FOXY LADY CAFE. After the Washington business failed to appear, Gulliver’s sought default judgment on trademark infringement, unfair competition, and related claims. The district court denied the request, and the Ninth Circuit affirmed.

Mark differences. The Ninth Circuit found that the district court did not clearly err in concluding that Gulliver’s mark and Foxy Lady Coffee’s marks were not sufficiently similar. The district court conducted a “thorough review” of the marks and determined that “the differences in the marks were more numerous than their similarities,” reducing the likelihood of confusion. The panel emphasized that, in applying the Ninth Circuit’s likelihood-of-confusion framework, the district court properly focused on the most important considerations, including similarity of the marks, rather than addressing every factor in equal depth. That approach was permissible, the panel said, because a likelihood-of-confusion determination may be resolved after considering only a subset of the Sleekcraft factors.

The ruling leaves in place a narrow reading of the shared wording “Foxy Lady.” Although both businesses incorporated those words into their branding, the Ninth Circuit accepted the lower court’s determination that the marks, taken as a whole, differed enough that confusion was not sufficiently shown.

Market distance. The Ninth Circuit also upheld the district court’s analysis of the proximity-of-the-goods factor. It noted one point of commonality: both businesses attract customers by featuring scantily clad employees. Even so, the panel concluded that geographic separation carried greater weight, agreeing that a reasonable customer in Washington would not likely associate Foxy Lady Coffee’s products with Gulliver’s Rhode Island business.

The district court found that the parties operated on opposite sides of the country, offered distinct goods and services, and that there was no evidence beyond a bare assertion that either intended to expand toward the other. It also determined that internet advertising did not bridge the gap because neither side actually provided services online. The Ninth Circuit did not address that analysis but adopted the same geographic reasoning, concluding that the Washington market was too remote from the Rhode Island business to support a likelihood of confusion on the pleadings.

Weak mark. Another obstacle for Gulliver’s was the strength of its mark. The Ninth Circuit found no clear error in the district court’s determination that the FOXY LADY mark was “presumptively weak.” The panel explained that the mark is suggestive and that more than 45 years of use did not alter the analysis because the mark was not distinctive in the relevant market, identified as western Washington.

Gulliver’s relied on long use and federal registration. The Ninth Circuit, however, did not decide whether Gulliver’s held a presumptively exclusive nationwide right to use the mark, concluding that the issue need not be reached because the district court did not abuse its discretion in finding that infringement had not been sufficiently pleaded. Although a defaulting party admits well-pleaded facts, the plaintiff must still state a legally sufficient claim. Here, the panel concluded that the pleadings did not justify the requested relief.

Turning to the Eitel framework, the Ninth Circuit held that the district court did not abuse its discretion in treating the lack of meritorious claims and the insufficiency of the complaint as dispositive. Because those considerations were sufficient, the district court did not err by declining to analyze the remaining factors in detail.

The Case is No. 24-5629.

Judge: Sanchez, G.

Attorneys: Alex Shepard (Randazza Legal Group, PLLC) for Gulliver's Tavern, Inc. d/b/a Foxy Lady. Marc J. Randazza (Randazza Legal Group, PLLC) for Foxy Lady, Inc. d/b/a Foxy Lady Coffee.

Companies: Gulliver's Tavern, Inc. d/b/a Foxy Lady; Foxy Lady, Inc. d/b/a Foxy Lady Coffee

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