## Facts

- Echo Travel, Inc. and Travel Associates, Inc. competed in marketing and selling college spring-break travel packages to Daytona Beach using posters, flyers, brochures, and student-campus marketers.
- Echo used a beach-scene photograph featuring college-age models on its 1985–86 promotional poster after obtaining the image through an advertising agency.
- The same advertising agency later provided Travel Associates the identical photograph, which Travel Associates used on its 1986–87 promotional poster.
- Echo claimed Travel Associates’ use of a substantially similar poster was an attempt to pass off Travel Associates’ tours as Echo’s services.
- Echo sued under Wisconsin common-law unfair competition and sought a temporary restraining order to stop Travel Associates from using the poster.
- After the district court denied preliminary relief, it granted summary judgment for Travel Associates, concluding Echo failed to show the poster had acquired secondary meaning.

## Issues

1. Whether Echo produced sufficient evidence to create a genuine issue of material fact that its promotional poster image had acquired secondary meaning among relevant consumers, as required for a Wisconsin common-law passing-off claim.

## Decision

- The Seventh Circuit affirmed summary judgment for Travel Associates.
- The court held Echo failed, as a matter of law, to raise a triable issue that the poster image had acquired secondary meaning.
- Because secondary meaning was essential to Echo’s theory of passing off based on a nonexclusive, largely generic advertising image, Echo’s evidentiary showing was insufficient under Rule 56.

## Legal Principles

- A plaintiff alleging passing off based on non-registered trade dress or advertising imagery must prove secondary meaning: the primary significance of the asserted mark in consumers’ minds identifies the producer, not the product or service category.
- Secondary meaning may be shown through factors including duration and manner of use, advertising, sales volume, consumer surveys, direct consumer testimony, and evidence of actual confusion.
- On summary judgment, conclusory assertions and unreliable or unrepresentative anecdotal testimony do not create a genuine dispute; the non-movant must present evidence from which a reasonable jury could find secondary meaning.
- Where the claimed source identifier is a common visual motif and the plaintiff lacks exclusive control over the underlying image, stronger proof is typically required to show consumer association with a single source.

## Conclusion

The court affirmed judgment for the defendant because the plaintiff’s record lacked reliable evidence—such as representative consumer proof, surveys, or meaningful confusion evidence—showing that a beach-scene promotional poster had come to identify the plaintiff as the source of spring-break travel services.


Echo Travel, Inc. v. Travel Assocs., Inc., 870 F.2d 1264 (7th Cir. 1989)