UNITED STATES DISTRICT COURT DISTRICT OF MAINE

WEX INC., ) ) Plaintiff, ) ) v. ) No. 2:24-cv-00121-JAW ) HP INC., et al., ) ) Defendants. )

ORDER ON MOTION FOR PRELIMINARY INJUNCTION At issue in this motion for preliminary injunction is whether the defendant’s new software, which bears the same name as the plaintiff company, infringes on the plaintiff’s trademarks. The plaintiff asks the court to enjoin the defendant from using any allegedly infringing mark for the duration of this litigation. Applying the First Circuit’s criteria for assessing likelihood of consumer confusion, the Court determines the plaintiff is likely to succeed on the merits because the marks at issue are nearly identical, the products are similar, the parties use the same marketing terms to promote the products, the plaintiff’s marks are strong, and the plaintiff has put forth convincing evidence of actual confusion. The court also concludes the plaintiff would suffer irreparable harm absent an injunction because the defendant’s allegedly infringing product is scheduled to launch before this case can proceed to trial, thereby running the risk of saturating the market with potential infringement and depriving the plaintiff of control over its brand and goodwill. As the balance of equities and public interest also favor preliminary injunctive relief, the Court grants the plaintiff’s motion. Accordingly, the defendant may not use “WEX” for the duration of this litigation. I. PROCEUDRAL BACKGROUND

On April 11, 2024, WEX Inc. (WEX) filed a civil trademark infringement action against HP Inc. and Hewlett-Packard Development Company, L.P. (collectively, HP), arising out of the impending launch of HP’s “Workforce Experience Platform,” branded as “WEX.” Compl. (ECF No. 1). The complaint alleges: 1) registered trademark infringement in violation of section 32 of the Lanham Act, 15 U.S.C. § 1114, id. ¶¶ 54-61; 2) common law trademark infringement in violation of Maine

law, id. ¶¶ 62-68; 3) unfair competition in violation of 15 U.S.C. § 1125, id. ¶¶ 69-75; and 4) violations of Maine’s Uniform Deceptive Trade Practices Act, 10 M.R.S. § 1212. Id. ¶¶ 76-82. WEX also seeks cancellation of HP’s pending trademark application for “WEX,” pursuant to 15 U.S.C. § 1119. Id. ¶¶ 83-89. On May 14, 2024, HP answered the complaint. HP Inc.’s and Hewlett-Packard Development Company, L.P.’s Answer to Compl. (ECF No. 33). On April 12, 2024, WEX filed a motion for preliminary injunction, seeking to

enjoin HP from using “WEX” for the duration of this litigation and “to return the parties to their position prior to HP’s adoption of the ‘WEX’ brand.” WEX Inc.’s Mot. for Prelim. Inj. at 8 (ECF No. 9) (Pl.’s Mot.). On May 14, 2024, HP responded in opposition. Defs.’ Opp’n to Pl.’s Mot. for Prelim. Inj. (ECF No. 34) (Defs.’ Opp’n). On May 28, 2024, WEX replied. WEX Inc.’s Mem. of Law in Further Supp. of Its Mot. for a Prelim. Inj. (ECF No. 38) (Pl.’s Reply). On June 4, 2024, WEX filed an additional attachment in support of its motion. Additional Attachs. (ECF No. 42). On May 8, 2024, WEX moved for an evidentiary hearing on its motion for

preliminary injunction. WEX Inc.’s Mot. for Evidentiary Hr’g (ECF No. 27). On May 13, 2024, the Court granted in part and deferred in part WEX’s motion for evidentiary hearing, scheduling oral argument and notifying the parties that an evidentiary hearing would be scheduled later if the Court determined one was necessary. Order (ECF No. 31). After reviewing the submitted material, the Court determined that no evidentiary hearing was necessary and held oral argument on July 1, 2024. Min.

Entry (ECF No. 45). Following oral argument, on July 1, 2024, WEX submitted additional correspondence in response to the Court’s request for its position on the amount of bond that should be required pursuant to Federal Rule of Civil Procedure 65(c). Notice/Correspondence Re: Suppl. Information (ECF No. 46) (Pl.’s Suppl. Notice). On July 3, 2024, HP filed its response to WEX’s supplemental correspondence. Notice/Correspondence Re: Suppl. Information (ECF No. 47) (Defs.’ Suppl. Notice).

II. FACTUAL BACKGROUND1 A. The Parties Id. HP suggests that rebranding HP WEX would not be in the public interest because consumers may be confused or misremember the product. Jd. § 20. C. The Trademarks At Issue WEX owns incontestable trademarks for “WEX,” “WEXONLINE,” and a previous version of its logo, reproduced below:

Dearborn Decl. § 24; Pl.’s Mot., Attach. ^[2], WEX Trademark Registration Certificates. WEX also has pending registrations for “10-4 BY WEX” and its current logo, reproduced below:

Dearborn Decl. { 24; WEX Trademark Registration Certificates. Although other companies use trademarks that include “WEX,” such as “WEX CONNECT” and “WEX WHEEL,” WEX is not aware of any companies with a national reach registering marks containing “WEX” standing alone in connection with the types of products and services offered by WEX. Dearborn Decl. § 48; Defs.’ Opp’n, Attach. 14, TSDR Status Page for “WEX CONNECT”, id., Attach. 15, TSDR Status Page for “WEX WHEEL”. WEX has consistently acted to protect its trademarks in the past, and the company has a co-existence agreement with the third party using “WEX CONNECT” and “WEX WHEEL.” Dearborn Decl. ¶ 49. Although IBM once

planned to release a “WEx” platform, the company apparently abandoned the project in March 2024. Dearborn Rebuttal Decl. ¶ 47. Should the project be revived, WEX will oppose IBM’s use of “WEx.” Id. ¶ 47 n.22. In December 2023, HP filed a trademark application for “WEX” standing alone. Salzman Decl. ¶ 13; Pl.’s Mot., Attach. 5, HP Trademark Application for “WEX”. A trademark examiner has since conducted a search of the U.S. Patent & Trademark

Office (USPTO) database of registered and pending marks, finding no conflicting marks that would prevent registration of HP’s WEX trademark. Id. According to HP’s counsel at oral argument, HP believed its pending trademark application for “WEX” would not infringe on WEX’s marks because, in HP’s view, the two companies operate in different industries, or “silos.” In response to HP’s attempted registration of “WEX,” WEX filed a letter of protest with the USPTO. Dearborn Rebuttal Decl. ¶ 42; Pl.’s Reply, Attach. 9,

Correspondence Between WEX and the USPTO (WEX-USPTO Correspondence). WEX will continue to oppose HP’s application should it proceed beyond an ex parte examination. Dearborn Rebuttal Decl. ¶ 42. In addition to seeking a trademark for “WEX” standing alone, HP is using the following logo for HP WEX: ()VGEX /

Defs.’ Opp’n at 6. D. Survey Evidence targets for HP WEX because they were responsible for selecting both their company’s internet-connected devices and at least one type of product offered by WEX.5 Id. ¶ 12. A total of 374 respondents completed the survey after meeting the screening

criteria. Id. ¶ 14. In addition to screening questions, the survey used a number of quality control measures.6 Id. ¶¶ 13, 15. The Butler Survey employed a Squirt survey methodology with test and control groups, a design chosen by Ms. Butler to determine whether HP’s use of “WEX” causes confusion by holding constant all other elements that might cause consumer confusion, including webpage design, webpage colors, and similarity of services. Id.

¶ 3. Survey respondents were randomly assigned to either the test group or the control group. Id. ¶ 18. Respondents in the test group were shown a screenshot of the HP WEX website, while respondents in the control group were shown the same webpage with all instances of “WEX” changed to “WEP.”7 Id. All respondents were then shown, in a random order, WEX’s webpage and webpages for three of WEX’s competitors—Stripe, Alegeus, and Corpay—which were meant to serve as distractors. Id. ¶ 19.

5 Specifically, respondents had to indicate they were responsible for selecting their company’s internet-connected devices and at least one of the following functions: 1) selecting API software or services for processing payments to vendors or suppliers; 2) selecting service providers, technology solutions, or platforms for managing employee benefits; 3) selecting operational and expense management solutions for businesses that use vehicles, or fleets of vehicles, in their daily operations; or 4) selecting management software or solutions, such as payment cards, for over-the-road trucking fleets. Butler Decl. ¶ 16. 6 These include, among other things, digital fingerprinting, used to exclude individuals who attempt to take a survey twice, reCAPTCHA questions, used to screen out bots attempting to take the survey, and industry screeners, used to flag respondents who may possess specialized knowledge about the survey topic or methodology. Butler Decl. ¶¶ 13, 15. 7 Ms. Butler used “WEP” for the control group because it is another realistic abbreviation for “Workforce Experience Platform.” Butler Decl. ¶ 3. After viewing all five webpages, respondents were asked whether they believed any of the products or services shown on the WEX webpage or the distractor webpages were from the same company as the company they saw first. Id. Respondents who

answered “Yes” were asked to select the products or services they believed were from the company they saw first and to explain each selection in an open-ended question. Id. Afterwards, respondents completed two additional question sets, which respectively asked whether they believed any of the products or services shown on the WEX webpage or distractor webpages were affiliated with or licensed by the company they saw first. Id. ¶¶ 20-21.

In total, 53.8% of respondents in the test group indicated they believed the WEX webpage was from, associated with, or licensed by HP.8 Id. ¶ 38. In the control group, 33% of respondents indicated they believed the WEX webpage was from, associated with, or licensed by HP. Id. By subtracting the control group’s rate of confusion from that of the test group, Ms. Butler concluded that 20.8% of respondents were confused solely by HP’s use of “WEX” and erroneously believed that WEX was the same company as HP, associated or affiliated with HP, or licensed by HP. Id.

¶ 5. Ms. Butler maintains the results of her survey provide strong evidence that consumers are likely to be confused by HP’s use of “WEX” and assume that WEX’s products and services are connected with HP. Id.

8 To arrive at this figure, Ms. Butler calculated the number of unique selections of WEX across all three question sets, ensuring that respondents were not double counted if they associated WEX with HP in more than one question set. Butler Decl. ¶ 38.

Dearborn Decl. ¶ 24. HP WEX’s logo uses black, upper-case letters and features a stylized “W.” HP WEX Website. Further, the HP WEX logo appears to the right of HP’s house mark. Id. Despite HP’s arguments to the contrary, Defs.’ Opp’n at 6-8,

these differences do not render the marks dissimilar. Regarding HP’s house mark being juxtaposed with the HP WEX logo, courts in this circuit have repeatedly concluded that the use of a house mark aggravates the likelihood of confusion under a reverse confusion theory, especially where, as here, the house mark belongs to a well-known brand. See Attrezzi, 436 F.3d at 39 (“[S]ince the alleged harm is reverse confusion, to the extent [the house mark] is itself the more

recognized label the linkage could actually aggravate the threat to Attrezzi LLC” (emphasis in original)); Cue, 2016 U.S. Dist. LEXIS 99624, at[*15] (“In a case of reverse confusion, however, a junior user’s consistent use of a housemark ‘will aggravate, rather than mitigate[,] reverse confusion’ by reinforcing the association of the similar mark with the alleged infringer” (emphasis in original) (quoting A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 230 (3d Cir. 2000)); Trak Inc. v. Benner Ski KG, 475 F. Supp. 1076, 1082 (D. Mass. 1979) (noting “the

presence of ‘Benner’ on the ski might suggest to the consumer that Benner somehow is licensed to do business by Trak”). HP relies on Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482 (1st Cir. 1981)—another case involving reverse confusion—to argue that the “use of a house mark dispels any appreciable confusion.” Defs.’ Opp’n at 6. However, Pignons is distinguishable. In Pignons, the Swiss manufacturer of “Alpa” cameras sued the American camera manufacturer Polaroid for trademark infringement over several versions of the Polaroid SX-70 Land Camera, all of which bore the name “Alpha.” 657 F.2d at

484-85. In assessing the marks’ similarity, the First Circuit initially observed that “[m]arks less closely related in appearance and sound have been held to be confusingly similar.” Id. at 487. Nevertheless, the Pignons Court determined that “the total effect of Polaroid’s designation of its SX-70 Alpha cameras minimizes, if it does not eliminate, the possibility that Polaroid’s mark might be confused” with Pignons’ mark. Id. Specifically, the First Circuit noted that the word “Alpha” always

appeared “in close proximity with an equally prominent and uniquely identifying designation, such as ‘Polaroid SX-70 Land Camera Alpha 1.’” Id. The Court further noted that “the packaging of Polaroid and Pignons cameras differs substantially.” Id. Ultimately, the Pignons Court concluded that “in certain circumstances otherwise similar marks are not likely to be confused where used in conjunction with the clearly displayed name and/or logo of the manufacturer.” Id. In contrast to Pignons, here, the HP WEX logo only appears in conjunction

with HP’s house mark, not a longer product name. The present case is therefore more like those where courts have found that the use of a house mark alone aggravates the likelihood of reverse confusion. See Attrezzi, 436 F.3d at 39 (comparing “Attrezzi” to “Jenn–Air Attrezzi”); Cue, 2016 U.S. Dist. LEXIS 99624, at *2-3,[*15] (comparing “CADILLAC CUE” to “CUE ACOUSTICS”). Further, nothing here is analogous to the packaging that helped distinguish the products in Pignons. Accordingly, the Court concludes that HP’s use of its house mark next to the HP WEX logo aggravates the possibility of reverse confusion by suggesting that WEX is owned by, or otherwise associated with, HP.

Especially in light of this aggravated potential for confusion, none of the other differences between the WEX logo and the HP WEX logo renders the logos dissimilar. While the differences in color and font are noticeable, the dominant element of both logos is the word “WEX” written in block letters in a straight line. In the Court’s view, based on the record before it, consumers are more likely to notice that both logos consist of the word “WEX” before they notice the subtle differences. “Although the

differences between the two logos are pronounced enough for a reasonable consumer to distinguish between the two logos, the designs are similar enough that a substantial number of consumers would reasonably believe that [WEX is] somehow . . . associated with the [HP] brand.” Polar Corp., 789 F. Supp. 2d at 231. Accordingly, the Court concludes that the similarity of the marks factor favors WEX. b. Similarity of the Goods To preface its discussion of the second Pignons factor—the similarity of the

parties’ goods—the Court briefly recounts the salient features of the products at issue. WEX sells a proprietary set of software solutions and technologies, which it categorizes into three segments—Benefits, Mobility, and Corporate Payments—all sold under the WEX brand. Dearborn Decl. ¶¶ 10, 13. WEX’s Benefits segment features software designed to simplify employee benefit management, including by allowing employees to enroll in and manage benefits throughout the plan year. Id. ¶ 14. Through its Mobility segment, WEX sells software aimed at simplifying the management of commercial vehicle fleets, including an online platform featuring alternative payment and money transfer options, comprehensive settlement

solutions, real-time reports, analytics, cost-optimization, fuel reconciliation, and mobile optimization tools. Id. ¶¶ 16-17. Finally, in the Corporate Payments segment, WEX offers highly scalable and vertically integrated payments solutions that customers can integrate into their own technology and products. Id. ¶ 19. HP WEX is a workforce experience and cybersecurity product marketed to HP’s enterprise clients, which streamlines technology updates, strengthens the

cybersecurity of connected devices, and provides CIOs with data analytics and employee sentiment regarding connected devices. Salzman Decl. ¶ 5. HP WEX uses AI to gather customer-specific data about employee usage of connected devices to help CIOs monitor and determine when to fix or upgrade the technology they manage. Id. ¶ 7. In the future, HP plans to add features to HP WEX to help CIOs determine when a cybersecurity anomaly exists on a device and the root cause of the anomaly, and help employees troubleshoot their own device support issues; however, HP has no

plans to add any payment support or financial services features to HP WEX. Id. As the preceding discussion makes clear, WEX’s products share some similarities with HP WEX, but the parties’ offerings are not identical. Both parties offer software to business customers designed to simplify internal business and management logistics. Yet the parties’ respective software products serve distinct purposes; WEX assists businesses with employee benefit management, vehicle fleet management, and corporate payments, while HP WEX assists businesses with device fleet management. If the similarity of the goods factor required products to be identical, this

distinction would end the inquiry. However, “[p]roducts sold under similar marks need not be identical to engender confusion.” Anheuser-Busch, Inc. v. Caught-On- Bleu, Inc., 288 F. Supp. 2d 105, 118 (D.N.H. 2003). “Trademark protection may extend beyond the exact product to include related products or services,” Polar Corp., 789 F. Supp. 2d at 232, and “[a]n owner of a trademark is afforded ‘protection against use of its mark on any product or service which would reasonably be thought by the

buying public to have come from the same source.’” Id. at 233 (quoting Anheuser- Busch, 288 F. Supp. 2d at 118). In WEX’s view, since “the parties are both offering business-focused software solutions under the exact same mark,” the products are similar enough that the similarity-of-goods factor weighs in its favor. Pl.’s Mot. at 12. WEX maintains that its products and HP WEX both are intended to “help manage the hurdles of running a business.” Id. More precisely, WEX observes that both parties offer software for

“fleet management,” and argues this shared positioning makes HP WEX “even more likely to cause confusion.” Id. HP portrays WEX’s characterizations as too high level and rejoins that the products “are only similar insofar as they relate to software, generally.” Defs.’ Opp’n at 8. According to HP, “[w]hat each software product does and why it is useful to its respective consumers differ so much as to render the better analogy to be one of jet planes to roller blades, which are similar insofar as they both provide transportation.” Id. (emphasis omitted). After reviewing the record, the Court agrees with WEX that, although the

parties’ software offerings are not identical, they are nevertheless so similar that they “would reasonably be thought by the buying public to have come from the same source.” Polar Corp., 789 F. Supp. 2d at 233 (quoting Anheuser-Busch, 288 F. Supp. 2d at 118). WEX’s software products and HP WEX are both targeted to business customers, with a value proposition of helping enterprises streamline and manage employee experiences. They also have similar functionalities; for example, both can

measure employee engagement, with WEX tracking this metric with respect to benefits usage and HP with respect to electronic devices. See Dearborn Decl. ¶ 15; Salzman Decl. ¶ 5. Similarly, WEX’s software provides analytics for fleets for vehicles, while HP WEX provides analytics for fleets of devices. See Dearborn Decl. ¶¶ 16-17; Salzman Decl. ¶ 5. That WEX’s products are broadly aimed at different aspects of the employee experience than those targeted by HP WEX does not render the products dissimilar.

At least one other court considering the similarity-of-goods factor at the preliminary injunction stage concluded that this factor favors injunctive relief where, as here, two software programs share similar functionalities. See Palantir Techs. Inc. v. Palantir.net, Inc., No. C 07-03863 CRB, 2008 U.S. Dist. LEXIS 6448, at[*14] -15 (N.D. Cal. Jan. 15, 2008) (noting “both companies offer products and services relating to the computer software industry generally, and their lines of business include database analysis and management specifically,” and “[b]oth companies offer clients the ability to manage and analyze data through software”). HP supplies no cases wherein a court has concluded that two software products

are so dissimilar that the similarity-of-goods factor weighs against injunctive relief. In contrast to the products at issue here, the products in the two cases cited by HP shared minimal, if any, overlapping features. See Pignons, 657 F.2d at 487-88 (comparing two single lens reflex cameras with “little in common,” and concluding that their “appearances are strikingly different so much so that one could not be mistaken for the other” and “their functional characteristics are equally distinct”);

Alta Vista Corp., Ltd. v. Digit. Equip. Corp., 44 F. Supp. 2d 72, 74, 77 (D. Mass. 1998) (comparing a literary services agency to a search engine, and concluding that the plaintiff “offers literary services, and [the defendant] does not”). The similarity of the goods here is reinforced by the how the parties market their respective software products. The home page of WEX’s website lists “[f]uel cards and fleet management” as one of WEX’s products. WEX Webpages at 2-3. HP WEX’s website similarly lists “[f]leet management” as one of the software’s “[c]apabilities.”

HP WEX Website at 10. Therefore, promotional materials for both products indicate that each can be used for the same function, fleet management. At oral argument, the parties conceded that they use “fleet management” differently. As HP points out, the technology industry uses “fleet” to refer computers, imaging and printing products, and related hardware. Salzman Decl. ¶ 8. Materials published by Dell, Lenovo, and Ricoh, all competitors of HP, use “fleet” in this manner. Defs.’ Opp’n, Attach. 27, Shawn Jagodzinski, Managing Device Fleets in the Hybrid Work Era, DELL TECHS.: DELL BLOG (Apr. 26, 2022) (Dell Article); id., Attach. 28, Lenovo Device Manager Webpage; id., Attach. 29, Brian Wallace, Managing Your

Device Fleets: Four Questions You Should Consider, RICOH (Ricoh Article). Even though the parties use “fleet management” differently, however, the fact that they both use this term at all is facially confusing. There is no evidence in the record that the understanding of “fleet” espoused by HP extends beyond the technology industry, meaning some relevant consumers may not realize, upon seeing “fleet management” standing alone, that HP is referring to technology devices. By

using “fleet management” in conjunction with a product that shares its name with an independent company that offers fleet management solutions, HP is putting the onus on consumers to educate themselves about how HP’s fleet management solutions are different from those offered by WEX. Because the record contains no evidence that consumers will perform such self-education to dispel any initial confusion, the Court concludes that although the parties use “fleet management” differently, this shared marketing language is likely to exacerbate consumer confusion.

Further exacerbating the likelihood of confusion is the fact that some companies offer software products targeting the same niches as WEX’s products and HP WEX. For example, Rippling’s “HR Cloud” offers software for employee benefits, while its “IT Cloud” offers software for device management. Dearborn Rebuttal Decl. ¶ 32; Pl.’s Reply, Attach. 6, Rippling Website. Oracle and SAP both offer similar software products as well. Dearborn Rebuttal Decl. ¶¶ 33-34; Pl.’s Reply, Attach. 7, Oracle Website; id., Attach. 8, SAP Website. As multiple companies already offer overlapping services, consumers may well believe that WEX’s products are somehow affiliated with HP, precisely the harm a reverse confusion trademark infringement

claim is intended to prevent.13 Accordingly, the similarity-of-goods factor favors WEX because 1) WEX’s products and HP WEX feature similar functionalities and are both aimed at simplifying internal business management logistics, 2) both companies advertise their products for “fleet management,” and 3) other companies offer overlapping products.

c. Channels of Trade, Advertising, and Prospective Purchasers “Factors three (channels of trade), four (advertising), and five (classes of prospective purchasers) are often considered together because they tend to be interrelated.” Beacon Mut., 376 F.3d at 19. “Channels of trade refer to the distribution methods and markets in which the products are sold.” Plixer Int’l, 2020 U.S. Dist. LEXIS 78047, at[*11] (quoting Butcher Co., Inc. v. Bouthot, 124 F. Supp. 2d 750, 756-57 (D. Me. 2001)). Regarding channels of trade, the record suggests that the parties’ software products reach consumers in different ways. HP anticipates primarily selling HP

13 HP argues it is nevertheless unlikely that consumers will associate HP WEX with WEX’s products because HP is a computer company while WEX is a “commercial banking company.” Defs.’ Opp’n at 8-9. However, “[t]he relatedness of each company’s prime directive is not relevant.” Palantir Techs., 2008 U.S. Dist. LEXIS 6448, at[*14] (quoting Brookfield Commc’ns, Inc. v. W. Coast Ent. Corp., 174 F.3d 1036, 1056 (9th Cir. 1999)). The fact that both parties offer products that are clearly not likely to be confused, such as computers and fuel cards, has no bearing on whether they nevertheless offer products that are likely to be confused. WEX already installed on HP computers and other hardware purchased from HP. Salzman Decl. ¶ 11. Since WEX does not sell hardware, it cannot distribute its software in this manner. However, even though there is a distinction in the parties’

channels of trade, this is of limited value because purchasers can acquire HP WEX independently of HP hardware, meaning there is some overlap in channels of trade. See id. (noting that “[m]any, if not most,” sales of HP WEX will include hardware). Turning to advertising, both parties maintain websites and social media accounts. See Dearborn Decl. ¶¶ 26, 38; Salzman Decl. ¶ 14; WEX Webpages; HP WEX Website. In addition, they advertise at trade shows and industry conferences,

and attempt to cultivate client relationships directly and, at least in in WEX’s case, through third-party partners. Dearborn Decl. ¶¶ 28, 30; Salzman Decl. ¶¶ 11, 14, 16; Dearborn Rebuttal Decl. ¶ 38. However, the Court likewise finds these similarities of little probative value. The fact that both companies have an online presence is not likely to cause confusion, as most companies with the reach of WEX and HP operate websites and social media accounts. See Cutting Edge Sols., LLC v. Sustainable Low Maint. Grass,

LLC, No. 14-cv-02770-WHO, 2014 U.S. Dist. LEXIS 149575, at[*35] -36 (N.D. Cal. Oct. 20, 2014) (“[T]he use[] of the internet as a marketing channel is ubiquitous and, thus, does not shed much light on the likelihood of consumer confusion”). Further, WEX only identifies one conference attended by both parties—the Salesforce Dreamforce Conference—and it is not clear from the record whether HP has attended the conference since announcing HP WEX, as the most recent evidence of HP’s attendance is from 2019. Dearborn Rebuttal Decl. ¶ 38 & n.17. It is also unclear whether HP’s Workforce Solutions business unit has attended this conference.14 Salzman Decl. ¶ 16. Absent specific evidence of the parties advertising at the same

trade shows, the fact that both advertise at trade shows generally is unlikely to create confusion. See Cutting Edge, 2014 U.S. Dist. LEXIS 149575, at[*36] -37 (finding no likelihood of confusion in part because “the companies’ products are not shown at [the] same trade shows or in the same trade publications”). In terms of prospective customers, both parties cater to companies in a variety of industries. Compare Dearborn Decl. ¶ 29 (noting that WEX’s customers operate in

fields including “finance, banking, fintech, travel, technology, insurance, government, charge point operations, construction, fuel, benefit administration, and trucking and logistics”), with id. ¶ 45 (noting that HP WEX “collaborators” include Volkswagen, Commerzbank, Saipem, Atomic Cartoons, and Bekaert), and HP WEX Website at 2, 16 (displaying HP WEX’s collaborators). However, WEX’s customer base appears to be broader, as WEX caters to companies of all sizes as well as government agencies, whereas HP typically does business with large enterprises only. Dearborn Decl. ¶ 29;

Salzman Decl. ¶ 11. Even though WEX and HP target similar—and in a few cases the same15— companies, they vigorously dispute whether they target the same individuals and

14 With respect to conference attendance, HP represents that its Workforce Solutions business unit focuses on the Gartner Data & Analytics Summit, the Cyber Security Summit, and the NVIDIA GTC, and that it is not aware of WEX attending any of these events. Salzman Decl. ¶ 16. 15 Bekaert is an existing WEX customer and an HP WEX collaborator. Dearborn Decl. ¶ 45. In addition, Verizon, American Express, Booking.com, and 7-Eleven are all WEX customers that are either HP customers or otherwise affiliated with HP’s products or services. Dearborn Rebuttal Decl. functions within those companies. HP represents that “HP WEX is marketed to Chief Information Officers (“CIOs”) and other executive-level information technology managers.” Salzman Decl. ¶ 5. WEX targets a wider variety of individuals, including

Chief Executive Officers, Chief Financial Officers, Chief Human Resources Officers, Chief Technology Officers, general managers, human resources personnel, procurement professionals, and information technology executives. Dearborn Decl. ¶ 20. HP argues that WEX “has no evidence of overlapping purchasers,” Defs.’ Opp’n at 11, while WEX takes issue with HP’s narrow definition of its customer base. Dearborn Rebuttal Decl. ¶ 27.

At the very least, the record reveals that both parties target technology executives. Although HP argues HP WEX is only marketed to CIOs, this assertion is undercut by the HP WEX website, which broadly states the product is “[f]or IT leaders” and “[f]or IT managers and admins.” HP WEX Website at 11. IT leaders, managers, and administrators are among the professionals targeted by WEX. Dearborn Decl. ¶ 20; Dearborn Rebuttal Decl. ¶ 27. The record also contains evidence that CIO is not always a standalone role and

can overlap with other roles, including Chief Technology Officer, another WEX target customer. Dearborn Rebuttal Decl. ¶ 28. In addition, all individual respondents to the Butler Survey were potential WEX customers who were also responsible for selecting their company’s internet-connected devices, further reinforcing the potential overlap in customers between WEX and HP WEX. Butler Decl. ¶ 2.

¶¶ 25-26. It is possible these companies could become HP WEX customers, as HP anticipates that at least 80% of HP WEX purchasers will be existing HP customers. Salzman Decl. ¶ 11. Accordingly, there appears to be at least some overlap between prospective purchasers of WEX’s software and HP WEX. However, even when there is an overlap in customers, “there is less likelihood

of confusion between products when they are expensive and purchased by sophisticated consumers or after careful consideration.” Plixer Int’l, Inc. v. Scrutinizer GMBH, No 2:16-CV-578-DBH, 2020 U.S. Dist. LEXIS 78047, at[*14] (D. Me. May 4, 2020) (citing Pignons, 657 F.2d at 489; and Astra Pharm., 718 F.2d at 1206). HP represents that HP WEX will cost at least six figures to acquire, and that the sales process will take at least six months.16 Salzman Decl. ¶ 11. WEX has not

provided concrete pricing information for its software, only representing that it charges fees on a monthly and per participant or transaction basis. Dearborn Rebuttal Decl. ¶ 39. Though this fee structure may render WEX software less costly for small companies, the fees likely add up for larger ones, which have more employees and transactions. Therefore, for the parties’ overlapping customers, WEX’s products are also likely quite costly.17 While the prospective-purchasers factor in particular would benefit from

further factual development, especially with regard to WEX’s sales process, the evidence in the record suggests the parties’ customers “exercise a relatively high degree of care,” meaning “they are more likely to recognize the difference” between

16 HP divides the sales process into the “discovery phase,” wherein the customer will conduct due diligence on the software, and the “financial quoting phase,” wherein HP and the customer will negotiate a sales price and ultimately enter into a sales contract. Salzman Decl. ¶ 11. 17 At oral argument, the parties briefly discussed their pricing models and sales processes but did not expand upon the information included in their written filings. the parties’ products. Peoples Fed. Sav. Bank v. People’s United Bank, 750 F. Supp. 2d 217, 226 (D. Mass. 2010) (concluding the level of care and sophistication exercised by individuals choosing a bank weighed against a likelihood of confusion).

Accordingly, although the parties have overlapping customers, this collection of factors favors HP because those customers are sophisticated, and HP anticipates some companies will acquire HP WEX by purchasing HP devices with the software already installed. d. Actual Confusion Before discussing actual confusion, the Court first reiterates that WEX’s

burden is “to show likelihood of confusion, not actual confusion.” Borinquen Biscuit, 443 F.3d at 120. “While evidence of actual confusion is ‘often deemed the best evidence of possible future confusion,’ proof of actual confusion is not essential to finding likelihood of confusion.” Id. (quoting Attrezzi, 436 F.3d at 40). The First Circuit has “attached substantial weight to a trademark holder’s failure to prove actual confusion only in instances in which the relevant products have coexisted on the market for a long period of time.” Id. at 121; see also Pignons, 657 F.2d at 490

(noting “[e]vidence of actual confusion is not invariably necessary to prove likelihood of confusion” but “absent evidence of actual confusion, when the marks have been in the same market, side by side, for a substantial period of time, there is a strong presumption that there is little likelihood of confusion” (internal quotation omitted)). Since HP WEX is not yet available to the public,18 WEX is under no obligation to proffer evidence of actual confusion. Nevertheless, WEX points to two pieces of evidence it believes show actual

confusion, namely, an Investing.com article associating WEX’s stock ticker with HP WEX and the results of the Butler Survey. Pl.’s Mot at 15-16; Pl.’s Reply at 5-7. HP responds that neither piece of evidence is probative of actual confusion, Defs.’ Opp’n at 13-15, and further submits that it is not aware of any person expressing confusion about whether HP WEX is related to WEX, or vice versa. Salzman Decl. ¶ 14. The Court initially disregards HP’s suggestion that because HP has not

received any information about customers being confused, no customers have in fact been confused. See Defs.’ Opp’n at 13. The promotion of HP WEX—which was just announced in March 2024—has been limited to the HP WEX website, social media, press releases, promotional videos, and industry events. Salzman Decl. ¶¶ 5, 14; Dearborn Decl. ¶ 38. HP has provided no evidence that this advertising has been so widespread as to saturate the market. To the contrary, a Google search submitted by WEX suggests that if a consumer searches for “WEX” or “WEX application,” no

results related to HP WEX even appear.19 Dearborn Rebuttal Decl. ¶¶ 9, 10; Pl.’s Reply, Attach. ^[3], Google Search Results for “WEX”; id., Attach. 4, Google Search

18 HP represented to the Court in May 2024 that a private beta launch of HP WEX would begin in June 2024, followed by a public beta launch in September 2024 and a full public launch in March 2025. Salzman Decl. ¶ 10. 19 In addition, when searching for “WEX application,” Google suggests a related search of “What is a WEX application,” for which the first suggested result is WEX’s website. Dearborn Rebuttal Decl. ¶ 10; Google Search Results for “WEX application”. Both Google searches submitted by WEX were completed after browsing data, cookies, and search history were cleared. Dearborn Rebuttal Decl. ¶¶ 8-9. Results for “WEX application”. Against this backdrop, HP not receiving any reports of confusion carries little weight. Turning to WEX’s proffered evidence, the Court determines that the

Investing.com article is probative of future confusion. The article, published on March 7, 2024, states that “HP’s WEX (NYSE:WEX) platform offers an AI-driven interface that simplifies the user experience by integrating multiple services into a cohesive dashboard.” Investing.com Article. “NYSE:WEX” refers to WEX’s stock ticker. Dearborn Decl. ¶ 47. Elsewhere, the article associates HP’s stock ticker with a reference to HP Inc.20 Investing.com Article.

The bottom of the Investing.com article reads, “This article was generated with the support of AI and reviewed by an editor.” Id. The article’s byline identifies its editor as Brando Bricchi. Id. HP argues the involvement of AI in the article’s creation undermines the article’s probative value because “[o]ne of the known flaws of modern AI systems is their ability to ‘hallucinate’ facts.” Defs.’ Opp’n at 13 n.7. However, as WEX points out, this argument does not account for the article’s representation that AI-generated text was “reviewed by an editor.” Investing.com Article; Pl.’s Reply at

6-7. Accordingly, the article’s text contradicts HP’s suggestion that the reference to WEX’s stock ticker was an AI glitch and “no person” was confused. Defs.’ Opp’n at 13-14 (emphasis omitted).

20 Specifically, the article states, “In a recent announcement at the Amplify Partner Conference, HP Inc. (NYSE:HPQ) unveiled a series of new services and solutions aimed at enhancing partner capabilities and driving sustainability.” Investing.com Article. To be sure, a stray reference to WEX’s stock ticker does not establish that Mr. Bricchi, the article’s editor, was actually confused about the relationship between WEX and HP. The Court cannot ignore, however, that the reference to WEX’s stock ticker appears immediately after the word “WEX.” Investing.com Article. At the very least, therefore, the name of “HP WEX” made it easier for an editor to miss an erroneous reference to WEX’s stock ticker. Further, as WEX convincingly argues, errors in the press are relevant because “WEX’s ‘commercial interest in the [WEX] mark’ will be threatened if journalists lead the public to believe that HP’s product is associated with WEX’s stock.” Pl.’s Mot. at 15 (alteration in original) (quoting Beacon Mut., 376 F.3d at 16). WEX claims, and HP does not dispute, that Investing.com is “ranked among the top three financial websites worldwide,” Dearborn Decl. ¶ 47, meaning consumers turn to the website for information. In light of the site’s popularity, the Court infers that consumers trust it to deliver accurate information and would believe from the erroneous reference to WEX’s stock ticker that HP and WEX are somehow affiliated. Given the reach of Investing.com, and the possibility of similar errors appearing in future articles, the Investing.com article is somewhat probative of actual confusion.21 Also somewhat probative of actual confusion, in the Court’s view, is the Butler Survey, the results of which suggest that 20.8% of respondents were confused solely by HP’s use of “WEX.” Butler Decl. ¶ 5. “Consumer survey evidence is often used to 21 For this reason, the Court also rejects HP’s argument that the Investing.com article is merely “an isolated example of purported confusion.” Defs.’ Opp’n at 14. Because neither of the cases HP relies upon involved the publication of misleading information to third parties, the Court finds them distinguishable. See Int’l Ass’n of Machinists, 103 F.3d at 205-06; Pignons, 657 F.2d at 490-91. demonstrate actual confusion in trademark infringement cases.” Anheuser-Busch, 288 F. Supp. 2d at 120-21 (citing Bos. Athletic Ass’n v. Sullivan, 867 F.2d 22, 31-32, 31 n.9 (1st Cir. 1989); and Copy Cop, Inc. v. Task Printing, Inc., 908 F. Supp. 37, 46 (D. Mass. 1995)). “A survey need not demonstrate that all consumers, or even a majority of them, would actually be confused,” and courts have found that a rate of confusion as low as 10-12% is sufficient to demonstrate actual confusion. Id. at 121 (citing Mut. of Omaha Ins. Co. v. Novak, 836 F.2d 397, 400-01 (8th Cir. 1987); RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058, 1061 (2d Cir. 1979); and Exxon Corp. v. Tex. Motor Exch. of Hous., Inc., 628 F.2d 500, 507 (5th Cir. 1980)). Though consumer surveys can be helpful, “[t]he field of consumer survey research is ‘not unqualified and without hazards.’” Hilsinger Co. v. Kleen Concepts, LLC, No. 14-14714-FDS, 2017 U.S. Dist. LEXIS 141659, at[*31] (D. Mass. Sept. ^[1], 2017) (quoting THOIP v. Walt Disney Co., 690 F. Supp. 2d 218, 230 (S.D.N.Y. 2010)). “[A]ny survey is of necessity an imperfect mirror of actual customer behavior under real life conditions” and instead “is a sample, albeit a scientifically constructed one.” Id. (quoting 6 MCCARTHY, supra, § 32:184). “The value of survey evidence turns on the design of the survey and the methodology used by the surveyor.” Rimowa Distrib., Inc. v. Travelers Club Luggage, Inc., 217 F. Supp. 3d 400, 409 (D. Mass. 2016) (citing In re Hotels.com, L.P., 573 F.3d 1300, 1305 (Fed. Cir. 2009)). While submitting no survey evidence of its own, HP launches five attacks against the Butler survey, contending the survey is unreliable for “showing HP’s HP WEX website and Plaintiff’s website in sequence, contrary to market conditions, encouraging respondents to re-review and match the HP WEX website, asking leading questions, surveying an inappropriate and poorly defined sample, and failing to control for respondent confidence.” Defs.’ Opp’n at 15. Specifically, HP first maintains the Squirt survey format “was the incorrect survey format to use” because WEX’s products and HP WEX will not be “sold in the same stores or websites.” Defs.’ Opp’n at 14. Second, according to HP, the methodology employed in the Butler Survey “does not reflect the circumstances in which consumers encounter Plaintiff’s and HP’s marks in the marketplace” because “no HP customer will purchase HP WEX based solely on a website.” Id. at 14-15. Third, HP argues the Butler Survey “skews the results with leading questions that encouraged respondents to hunt for associations.” Id. at 15. Fourth, HP critiques the Butler Survey as being “predicated on the incorrect assumption that the same individuals would be potential customers of both parties and used vague screener questions.” Id. Finally, HP suggests the Butler Survey “failed to control for respondent certainty in their ‘confusion,’ effectively counting respondents as ‘confused’ when they were guessing.” Id. The Court considered each of HP’s criticisms of the Butler Survey. Though the Court finds them valid in some respects, the Court is not convinced at this preliminary stage that it should entirely disregard the results of the Butler Survey, especially in light of HP’s failure to submit its own countervailing survey evidence. Ultimately, the Court is mindful that “there is ‘no such thing as a perfect survey.’” THOIP, 690 F. Supp. 2d at 230 (quoting 6 MCCARTHY, supra, § 32:178). Instead, a survey is merely “an experimental environment from which we can get useful data from which to make informed inferences about the likelihood that actual confusion will take place.” Id. (quoting 6 MCCARTHY, supra, § 32:184). After reviewing HP’s criticisms in detail, the Court does not agree that the Butler Survey was “fundamentally flawed” to the point of not “demonstrat[ing] any actual confusion.” Defs.’ Opp’n at 14. To the contrary, the Court finds that the Butler survey created an experimental environment that suggests a strong possibility of consumer confusion if HP WEX were fully launched and actively promoted. Because the Investing.com article and the Butler Survey suggest consumers may associate WEX with HP based on the name of HP WEX, the Court concludes the actual confusion factor favors WEX. Even if the Investing.com article and Butler Survey, standing alone, do not conclusively demonstrate a likelihood of confusion; they provide relevant datapoints properly considered with the constellation of evidence presented in conjunction with the other Pignons factors. e. HP’s Intent in Adopting the “WEX” Marks “Whether the defendant acted in bad faith in adopting its mark is another factor to be considered in determining the likelihood of consumer confusion.” Bos. Duck Tours, 531 F.3d at 25-26. An alleged infringer acts in bad faith if they adopt a mark “in order to cause market confusion or with an intent to exploit [the senior user’s] reputation and goodwill.” Dorpan, S.L. v. Hotel Meliá, Inc., 728 F.3d 55, 68 (1st Cir. 2013); see also Unleashed Doggie Day Care, LLC v. Petco Animal Supplies Stores, Inc., 828 F. Supp. 2d 384, 395 (D. Mass. 2010) (“Bad faith requires proof that one party intended to capitalize on the holder’s reputation/goodwill and confusion between the marks”). The record contains no evidence that HP acted in bad faith. According to HP, WEX is an acronym for “Workforce Experience Platform,” a name chosen to reflect the software’s capabilities and align with the name of the Workforce Solutions business unit. Salzman Decl. ¶ 12. HP further maintains that it was not aware of WEX’s existence when it named HP WEX. Id. ¶ 13. At oral argument, counsel for HP reinforced that HP chose the name “WEX” based on its own branding objectives. Since these assertions are uncontradicted, the current record does not suggest that HP adopted the WEX mark with the intent to capitalize on WEX’s goodwill or sow confusion. Since WEX does not have contradictory facts, it argues the Court can infer bad faith on the part of HP because “[f]ederal registration serves as constructive notice to the public of the registrant’s ownership of the mark.” Pl.’s Mot. at 16 (quoting Dorpan, 728 F.3d at 61). In WEX’s view, “HP’s ‘use of a mark which is the same or confusingly similar to [WEX’s] mark as stated in its federal registration certificate[s] cannot be justified by a claim of coincidence, good faith or lack of knowledge on the part of [HP].’” Id. (alterations in original) (quoting Veryfine Prods., Inc. v. Colón Bros., Inc., 799 F. Supp. 240, 250 (D.P.R. 1992)). This argument is foreclosed by First Circuit caselaw. “The First Circuit has drawn an important distinction between the ‘willfulness’ and the ‘bad faith’ of an alleged infringer.” Cue, 2016 U.S. Dist. LEXIS 99624, at[*23] (citing Visible Sys., 551 F.3d at 75). “While willfulness may be relevant to damages after a finding of infringement, only bad faith is relevant to a likelihood of confusion.” Id. (citing Visible Sys., 551 F.3d at 75). Further, “[m]ere knowledge of the existence of a competitor’s mark is insufficient to prove bad faith.” Unleashed Doggie Day Care, 828 F. Supp. 2d at 395 (alteration in original) (quoting NEC Elecs., Inc. v. New Eng. Cir. Sales, Inc., 722 F. Supp. 861, 866 (D. Mass. 1989)). Even if HP had constructive knowledge or even actual knowledge of WEX’s registrations, it would still not suggest a likelihood of confusion because knowledge of a competing trademark does not necessarily imply an intent to create confusion. Therefore, this factor favors HP. See Bos. Duck Tours, 531 F.3d at 30 (noting the “absence of bad faith” by the alleged infringer “weighs against a finding of infringement”). f. Strength of WEX Inc.’s Marks “[S]trong marks enjoy the greatest protection against infringement.” Anheuser-Busch, 288 F. Supp. 2d at 124 (alteration in original) (quoting Int’l Ass’n of Machinists, 103 F.3d at 206). In the First Circuit, “courts analyze the strength of a mark by focusing on its commercial strength instead of its theoretical classification.” Pub. Impact, LLC v. Bos. Consulting Grp., Inc., 169 F. Supp. 3d 278, 292 (D. Mass. 2016). The First Circuit has explained that: Various factors are relevant in ascertaining the strength of a trademark, including the length of time the mark has been used, the trademark holder’s renown in the industry, the potency of the mark in the product field (as measured by the number of similar registered marks), and the trademark holder’s efforts to promote and protect the mark. Borinquen Biscuit, 443 F.3d at 121. WEX has referred to itself as “WEX” in advertisements, on fuel cards, and on company documents since 1989, and the company officially changed its name from “Wright Express” to “WEX” in 2012. Dearborn Decl. ¶¶ 7-8. All WEX’s products and services are now sold under the “WEX” brand. Id. ¶ 13. WEX has also made significant investments in promoting the “WEX” brand. In the past three years, the company has spent more than $100 million on advertising its products and services.22 Dearborn Decl. ¶ 25; Dearborn Rebuttal Decl. ¶ 12. WEX also runs a variety of social media accounts and has received coverage from media outlets including CNBC and The Guardian.23 Dearborn Decl. ¶ 26; Dearborn Rebuttal Decl. ¶ 12. In addition, WEX has received a number of media accolades, including being named one of the 100 fastest growing public companies by Fortune in 2019. Dearborn Rebuttal Decl. ¶¶ 13-14. HP nevertheless argues that “WEX” is a weak mark because it is used by other companies. HP highlights Wolverine Execution Services, known as “WEX,” “an independent broker-dealer specializing in the execution of equities, options, and 22 HP suggests the $100 million figure provided by WEX is unreliable because it “does not detail how much was spent marketing the WEX trademark as opposed to, for example, employee opportunities or salaries.” Defs.’ Opp’n at 17. The Court does not find this argument persuasive because WEX subsequently clarified that the $100 million figure “specifically excludes overhead costs, like employee salaries.” Dearborn Rebuttal Decl. ¶ 12 (emphasis in original). Further, because all WEX’s products and services are sold under the “WEX” brand, this is not a situation where proffered advertising expenditures “are not limited to promoting” the particular mark at issue. Health New Eng., Inc. v. Trinity Health -- New Eng., Inc., No. 15-30206-MGM, 2016 U.S. Dist. LEXIS 124946, at[*12] (D. Mass. Sept. 14, 2016). 23 HP argues that WEX’s social media accounts add little, if anything, to the analysis as “Plaintiff has less than 2,000 followers on its ‘X’ social media account, and its posts receive minimal, if any, engagement.” Defs.’ Opp’n at 17; id., Attach. 10, Screenshot of WEX X Account. The Court does not find this contention particularly helpful and instead notes that WEX has made 7,752 posts since starting its X account in March 2012. Screenshot of WEX X Account. Therefore, regardless of the number of followers WEX has, there can be no doubt the company has an active social media presence. futures for institutional investors.” Defs.’ Opp’n, Attach. 11, Wolverine’s “Our Businesses” Webpage. Wolverine Execution Services owns trademarks for “WEX CONNECT,” in connection with “[d]irecting orders for securities trades by means of computer software which automatically directs trades to the best location for executing such orders,” and “WEX WHEEL,” in connection with “[f]inancial analysis, namely, compiling and analyzing statistics, data and other sources of information for purposes of equities, options and futures trading.” TSDR Status Page for “WEX CONNECT”; TSDR Status Page for “WEX WHEEL”. “Evidence of third-party use of similar marks on similar goods can be probative of a mark’s relative weakness.” A. Simon & Sons, Inc. v. Simonfurniture Int’l, Inc., No. 21-cv-11254-PBS, 2021 U.S. Dist. LEXIS 248630, at[*21] (D. Mass. Nov. 19, 2021). But the products offered by Wolverine Execution Services are distinguishable from those offered by WEX and HP. There is little overlap between stock trading software and software to help businesses manage internal logistics.24 Further, WEX has a co- existence agreement with Wolverine Execution Services, demonstrating WEX’s protection of its marks. Dearborn Decl. ¶ 49; Dearborn Rebuttal Decl. ¶ 46. The Court does not agree with HP that the existence of Wolverine Execution Services renders “WEX” a weak mark. In sum, WEX has used “WEX” for roughly 35 years, it has spent large amounts of money advertising the “WEX” brand, and it has taken steps to protect the “WEX” 24 For this reason, the Court finds the Imperial County Workforce Development Board’s Adult Work Experience Program, known as “WEX,” to be of no probative value. See Defs.’ Opp’n, Attach. 16, Adult Work Experience Program Website. There is no overlap between a job-training program, like the Adult Work Experience Program, and WEX’s products and services. mark in the face of registration attempts by other entities. Accordingly, the Court concludes that the “WEX” mark is strong, and that this factor favors WEX. g. The Balance of the Pignons Factors Having assessed the Pignons factors individually, the Court must now weigh them to determine whether WEX has shown that consumer confusion is likely to result from HP’s use of “WEX.” See Borinquen Biscuit, 443 F.3d at 120 (“A proper analysis takes cognizance of all eight factors but assigns no single factor dispositive weight”). To recap, the Court concluded that the similarity of the marks, the similarity of the goods, actual confusion, and the strength of WEX’s mark all favor WEX. In contrast, HP’s intent and the products’ channels of trade, advertising, and customers favor HP. After balancing the Pignons factors, however, the Court determines that confusion is likely. The First Circuit has remarked that the “most critical” factors in the likelihood of confusion analysis are “evidence of actual confusion, similarity of marks, similarity of goods and services, and strength of marks.” Beacon Mut., 376 F.3d at 20. All four of these factors favor WEX, and viewing them together demonstrates why HP’s use of “WEX” is likely to cause confusion. WEX’s products and HP WEX have nearly identical names, and the only difference—the meaning of the marks—is not apparent to consumers. The products themselves are also similar, and their similarities are exacerbated by HP’s repeated references to HP WEX as a “fleet management” solution and the fact that other companies offer the types of software products sold by both parties. WEX’s mark is strong, as WEX has used the mark for three and a half decades, invested in the mark, and taken steps to protect the mark in the past. Finally, through media and survey evidence, WEX has shown actual confusion, “often deemed the best evidence of possible future confusion.” Attrezzi, 436 F.3d at 40. The factors favoring HP do not counterbalance this evidence. In particular, the First Circuit has “noted that the lack of intent on the alleged infringer’s part to create confusion is not particularly useful in the ultimate determination of likelihood of confusion and ‘may not outweigh other factors that suggest a likelihood of confusion.’” Dorpan, 728 F.3d at 69-70 (quoting I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 44 (1st Cir. 1998)). Further, the Court does not view the channels of trade, advertising, and customer bases as decisively favoring HP. To the contrary, WEX put forth evidence that its customer base overlaps with the customer base for HP WEX. The sophistication of consumers was what tipped the scales toward HP, and although consumer sophistication favors HP, it is not the law that sophisticated consumers cannot be confused. Taken together, the evidence favoring WEX is overwhelming, while the evidence favoring HP is slight. Accordingly, the Court concludes that WEX is likely to succeed on the merits in this case because it has demonstrated that consumers are likely to be confused by the launch and promotion of HP WEX. B. Irreparable Harm, Balance of Hardships, and the Public Interest