Any newcomer to Delaware would note the proliferation of business names containing some variation on “Diamond State” or “Blue Rock” – and, as the Court of Chancery recently noted in its letter opinion in Diamond State Tire, Inc. v. Diamond Town Tire Pros & Auto Care, Inc., C.A. No. 11550-VCS (August 15, 2016), the inclusion of “Diamond State” in a name “is so common in Delaware as to justify very little, if any, protection.” The Court concluded that Diamond Town Tire had not violated Delaware’s Deceptive Trade Practices Act, and employed the following multi-factor test enunciated in Draper Commc’ns, Inc. v. Del. Valley Broadcasters Ltd. P’ship, 505 A.2d 1283 (Del. Ch. 1985):
(i) the degree of similarity between the marks, (ii) the similarity of products for which the name is used, (iii) the area and manner of concurrent use, (iv) the degree of care likely to be exercised by consumers, (v) the strength of the plaintiffs’ mark, (vi) whether there has been actual confusion, and (vii) the intent of the alleged infringer to palm off his products as those of another.