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The likelihood of confusion standard defines the scope of trademark infringement. Likelihood of confusion examines whether there is a substantial risk that consumers will be confused as to the source, identity, sponsorship, or origin of the defendants' goods or services. This Article presents a contemporary empirical analysis of the various factors and how they interact. Conventional wisdom teaches us that courts should comprehensively traverse each factor and that likelihood of confusion cases generally require jury determination. However, the data reveals that neither is true. Instead, courts provide early off-ramps to litigants by "economizing," and analyzing only a handful of factors or by "folding" factors within each other. The findings also reveal (1) which forums are pro-defendant and which are pro-plaintiff; (2) the impact of rivalry and fair use on outcomes; and (3) an apparent Ninth Circuit dominance. What constitutes "confusion" remains highly subjective and difficult to evaluate. Proxies like intent, survey evidence, mark strength, and consumer sophistication fail to incorporate real-world purchasing conditions or are better considered within omnibus factors. In contrast, actual confusion, mark similarity, and competitive proximity provide judges with a potent trio of factors to guide the infringement inquiry. Together with safe harbors for descriptive and expressive uses, these rules of thumb enable courts to resolve trademark disputes more coherently, consistently, and expeditiously. This Article concludes with a blueprint of how these rules of thumb complement artificial intelligence systems and how those systems can use empirical studies as training data to inform future likelihood of confusion analyses. [ABSTRACT FROM AUTHOR]

The article discusses the court case Lawn Managers v. Progressive Lawn Managers which deals with the value of company trademarks. Topics mentioned include the main purpose of the trademark law, a brief description of the facts and procedural history of the case, various ways that lawn care service company Lawn Managers created consumer confusion, and the relevant defenses against trademark infringement.

The article offers information related to "Iancu v. Brunetti," a U.S. Supreme Court case related to the registration of trademarks under the Lanham Act. It reports that the case seeks to determine if refusal to grant "scandalous" trademarks under the Lanham Act is unconstitutional under the freedom of speech clause in the First Amendment to the U.S. Constitution.

The author Marina Olsen is a lawyer with Banki Haddock Fiora in Australia. This article An Australian Federal Court judgment from 2017, examining the likelihood of deception or confusion arising between the marks CLIPSAL and CLIPSO used in relation to electrical accessories, has shed light on the complexities of defining the market for goods or services in trade mark, passing off and consumer law claims. Where goods or services are traded in a 'specialized market', consisting of persons engaged in a particular trade and not generally sold to the general public, evidence from persons accustomed to dealing in that market is essential, and replaces the usual rule of the judge relying on their own assessment of likely deception or confusion. A market might be more accurately described as 'segmented', with some parts specialized and other parts not. Markets that were once strictly confined and defined might open up to new players and platforms. The advent of online shopping, and the ability for consumers to use the Internet to research areas that were once monopolized by traders, are significant drivers of this change. [ABSTRACT FROM AUTHOR]

The article discusses the 2014 court case Interflora Inc. and Interflora British Unit v. Marks and Spencer PLC, which concerns trademark infringement. Topics discussed include the Court of Appeal remitting the case to the British High Court for retrial based on the erroneous interpretation of the law by the first instance judge, the Court of Appeal's consideration of burden of proof and initial interest confusion and the implication of the case for online advertising and online trademarks.

The article focuses on the need to determine the willfulness' proper place when awarding damages disgorged from the trademark infringer's profits. Topics discussed include trademark protection and legislative actions taken to preserve the protection, U.S. Congress's silence on willful infringement under the common law and damage-based policies of compensation. It mentions the decision of district court of Connecticut in Romag Fasteners Inc. v. Fossil, Inc. related to trademark confusion.

The article discusses the U.S. court case Radiance Foundation Inc. v. NAACP wherein trademark infringement and trademark dilution. The Court have recognized the risk that some people might be briefly confused about the speech. The court reviewed the issue and attempted to reverse and hold that Radiance should have been granted a declaratory judgment that its posts were not infringing.

The purpose of this piece is to draw attention to parallels between how European trade mark law treats certain issues pertaining to distinctiveness in the light of the Kit Kat reference and recent United States scholarship on confusion. It will be argued that, while the courts require a detailed consideration of consumer perception in establishing distinctiveness, this is not always the case when it comes to establishing confusion. However, a group of US scholars have called for a consideration of the real effect of junior use on consumers as part of the confusion test. I argue that this scholarship and European developments in the field of distinctiveness share a refreshing concern for the reality of consumer perception. [ABSTRACT FROM PUBLISHER]

The article offers an overview of 2013 federal court judgments involving trademark law. Topics include trademark confusion, the trademarking of generic products, and procedural trademark issues such as the approval of government entity seals and insignia. Information is provided on claim preclusion and the development of trademark law in the U.S.

The Trademark Counterfeiting Act (TCA) has been widely applied to cases of post-sale confusion, which occurs when someone buys a knock-off luxury item knowing that it is fake. When liability is predicated on post-sale activity, the only people that are confused are the members of the general public who observe someone wearing what looks like a genuine brand item--a Rolex watch or Louis Vuitton bag for instance--and think it is real when in fact it is not. While every circuit that has dealt with knock-off goods has held that post-sale confusion is criminalized by the TCA, this Note argues that this conclusion relies on an improper reading of the statute. The TCA was only designed to make criminal those actions that were clearly actionable civilly in 1984, when it was enacted. This Note will show that post-sale confusion was far from uniformly accepted civilly in 1984 and argue that, therefore, it should not be read into the TCA. Furthermore, this Note argues that the harms of post-sale confusion are identical to the harms of dilution, which was not covered in the Lanham Act until 1996 and was never included in the TCA. The Note then examines the statutory scheme to argue that Congress had only point-of-sale confusion in mind when it enacted the TCA. The statute unambiguously fails to cover more typical dilutive sales, which is strong evidence that, contrary to the courts' collective reasoning, Congress did not have the harms of dilution in mind when it added criminal penalties to trademark law. Finally, this Note argues that, from a policy perspective, post-sale confusion should not be criminalized. The harms are small, and companies have had a great deal of success combatting knock-offs with civil actions. There is no need to impose severe fines and long prison terms for selling knock-offs. This Note concludes by stating that there are serious harms from counterfeits that create point-of-sale confusion, but the public does not take these seriously because they think only of knock-offs when they think about counterfeits. The decriminalization of the sale of knock-offs will allow the public to be more willing to accept the true dangers of "real" counterfeits and to become more vigilant in the marketplace. [ABSTRACT FROM AUTHOR]

The article focuses on loopholes of new generic top-level domains (gTLDs) which are present in an internet address, approved by the Internet Corporation of Assigned Names and Numbers (ICANN), a nonprofit private organization. It informs that most of the brand owners deny the implementation of gTLDs as these would harm trademark law by creating trademark confusion for customers. It depicts that new gTLDs will increase top-level domains number by allowing brand owners to buy internet name space.

The article focuses on the problems faced by the European Union (EU) in the digital environment for the protection of trademark under the EU trademark law. Emphasis on the need of a more flexible and appropriate limitation infrastructure which will counterbalance the broad grant of protection is highlighted. Information on the traditional trademark protection against confusion under the article 5(1) of the Trademark Directive (TMD), and against dilution in article 5(2) TMD is presented.

The article discusses the author's recommendation that American lawyers should treat U.S. Trademark Tribunal and Appeal Board (TTAB) proceedings as if they are federal court actions as of 2016, and it mentions trademark infringement claims in America and the U.S. Supreme Court's determination that TTAB decisions regarding the likelihood of confusion legal principle can be binding in court under an issue preclusion doctrine. The trademark case B&B Hardware Inc. v. Hargis Indus. Inc. is assessed.

The CJEU has provided valuable guidance on the interpretation of ‘due cause’ (under Article 5(2) of Directive 89/104 (now replaced by Directive 2008/95)) where a sign that is identical or similar to a registered trade mark with a reputation was already being used in good faith before the registered trade mark was applied for. [ABSTRACT FROM PUBLISHER]

The article reports on the U.S. General Court ruling which upheld Lacoste's opposition to registration of crocodile or caiman figure as Community trade mark (CTM) for leather goods and clothing and footwear and rejected an appeal from Office for Harmonization in the Internal Market (OHIM).

In OHIM v riha WeserGold Getränke, the CJEU held that the enhanced distinctiveness of an earlier mark is irrelevant to the assessment of a likelihood of confusion between dissimilar marks. [ABSTRACT FROM PUBLISHER]

The German Federal Supreme Court referred questions to the Court of Justice of the European Union (CJEU) regarding the scope of information claims a trade mark owner can invoke against third parties in cases of alleged trade mark infringement. [ABSTRACT FROM PUBLISHER]

The General Court of the European Union found in favour of Berlin Zoo by confirming that the Office of Harmonization for the Internal Market (OHIM) was correct to refuse registration of the mark KNUT—DER EISBÄR (in English: KNUT—THE POLAR BEAR) in the name of Knut IP Management Ltd, based on a likelihood of confusion with the earlier German trade mark KNUD for which Berlin Zoo holds a licence. [ABSTRACT FROM PUBLISHER]