In the present case, Rocky Mount argues that the police chief's licensing determinations are objective ones, drawn exclusively from an applicant's business proposal and the letter of the law. However, this overlooks the plain language of the license-denial provision at issue, which by its terms extends the police chief's inquiry to the entire body of municipal, state, federal, and common law.
The denial-provision exemplars—Rocky Mount's “building, zoning, and health regulations”—provide meaningful reference points. Ordinance § 13-273(d)(2). The police chief can easily and objectively determine whether an applicant's “[s]ervice equipment [will be] ... located in any attic, clothes closet, kitchen storage cabinet, bathroom, toilet room, bedroom, coal or trash bin.” § 5-109(b)(1). Or whether an applicant's proposed business location complies with Rocky Mount's zoning restrictions.
See generally Ordinance app. A (“Land Development Code”). But many other laws that may apply to sexually oriented businesses do not have such straightforward analyses. For example, each applicant must include in her application “[t]he name of the sexually oriented business.” § 13-273(a)(2). If that name creates a likelihood of confusion with another entity's valid and protectable trademark, then the applicant violates the Lanham Act's provisions regarding trademark infringement.
George & Co. LLC v. Imagination Entm't Ltd., 575 F.3d 383, 393 (4th Cir. 2009);
see 15 U.S.C. § 1114(1). However, such an infringement determination can only be made after performing sophisticated analysis of a nine-factor test, the prongs of which almost all turn on evidence not contained within a licensing application.
Imagination Entm't, 575 F.3d at 393 (articulating factors such as “the similarity of advertising used by the markholders” and “the strength or distinctiveness of the plaintiff's mark as actually used in the marketplace,” and conducting eleven paragraphs of analysis regarding the latter).