Citing the “absence of any evidence indicating actual confusion in the marketplace,” a federal judge has decided in favor of the American Retirement Association (parent organization of NAPA) in litigation brought by the CFA Institute regarding use of the NAPA CPFA credential.
On Nov. 5, the U.S. District Court in the Western District of Virginia granted in full the American Retirement Association’s motion for summary judgment[i] and dismissed CFA Institute’s complaint in its entirety, noting that “no reasonable trier of fact could find in favor of Plaintiff on any of its four counts in this action, because Plaintiff fails to put forth evidence sufficient to create a genuine dispute of fact that Defendants’ use of their CPFA credential creates a likelihood of confusion in the marketplace.”
Case History
In February 2019, the CFA Institute chose to file a civil lawsuit regarding alleged trademark infringement with NAPA’s Certified Plan Fiduciary Advisor name and program, claiming that it would result in confusion in the marketplace with their Chartered Financial Analyst name and program. Among other things, their arguments had gone so far as to note that CPFA and CFA both included three identical letters in the same sequence.
The CFA Institute plaintiffs had argued that those pursuing the credentials might be confused by the similarity in their acronyms, but Judge Norman K. Moon dispensed with that notion quickly, explaining that “there can be no serious debate that those in the financial services industry are not likely to obtain the CPFA credential under the mistaken belief that it is affiliated with the CFA credential.”
‘Speculative and Irrelevant’ Arguments
The CFA Institute plaintiffs had also argued that, despite significant differences in the target audiences (investment management professionals in the CFP and retirement plan advisors with the NAPA CPFA), “secondary” markets, such as retail clients or employers, might be misled, but Judge Moon determined that argument was “both speculative and irrelevant.” He noted that “Plaintiff fails to offer even a scintilla of evidence showing actual confusion in the marketplace. No survey, no anecdotal evidence, not even a single account from anyone who once called CFA Institute seeking a CPFA credential, or vice-versa.”
He went on to explain that, “As Defendants correctly note, even two years without any identifiable instance of actual confusion is a damning fact undermining the Plaintiff’s claim.” Moreover, “the absence of any confusion makes Plaintiff’s particular theory of trademark infringement difficult to accept at face value,” and Judge Moon described their premise as “entirely speculative without a single example of someone confusing the credentials or thinking them merely interchangeable—much less a consumer survey showing a demonstrable portion of the market believes as much.”
Judge Moon also found no evidence “to demonstrate bad faith or malintent” on the part of the American Retirement Association/NAPA in choosing the credential name or abbreviation.
In sum, Judge Moon concluded, “Plaintiff fails to overcome opposing evidence regarding the sophistication of the consuming parties, the innocent intent of Defendants, and, most importantly, the absence of any evidence indicating actual confusion in the marketplace.”
Commented Brian Graff, CEO of the American Retirement Association and Executive Director of NAPA, “We are extremely pleased that the U.S. District Court recognized that NAPA’s Certified Plan Fiduciary Advisor (CPFA) credential program is designed for those advising employers on their fiduciary duties in providing retirement plans for their employees. At this point we hope that both organizations can now better focus their attention and resources on our respective missions rather than on wasteful litigation.”
[i] A judgment by the court for one party without a full trial.
