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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 focuses on background information on the U.S. trademark law, traditional infringement, and upcycling which is materially different from traditional infringement. It mentions pervasive infringement framework, including traditional infringement exceptions and policy arguments that distinguish upcycling from traditional infringement. It also mentions necessity of distinguishing between traditional infringement and upcycling.

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]

Circuit courts are split on how much deference should be given to a United States Patent and Trademark Office ("USPTO") trademark likelihood-of-confusion determination during litigation under Lanham Act section 43(a)(1)(A). While some courts afford a substantial amount of deference to the USPTO's findings regarding a likelihood of confusion when it refuses to register a mark on the principal register, other courts afford little to no deference to the USPTO's findings regarding a likelihood of confusion. This disparity among courts outlines a need for a solution that best fulfills the goals of the various courts in order to create a unified precedent of deference. By analyzing each court's approach as to how much deference to give and by taking a closer look into the deference given to USPTO patent determinations, this Note proposes that USPTO likelihood-of-confusion determinations receive a presumption of validity in subsequent litigation. A challenger can rebut this when (1) a USPTO examiner failed to consider or was unaware of relevant evidence; (2) an examiner's actions were arbitrary and capricious; or (3) there exists evidence of unfair prejudice. This solution better fulfills efficiency than reasonable alternatives, and in an overarching effort to create homogeny, better creates a uniform precedent of deference. [ABSTRACT FROM AUTHOR]

Famous marks classically earn twofold confusion and dilution trademark protection. In the past, only famous high-quality, socially acceptable marks--dubbed "wholesome" marks in this Comment--have found protection under dilution theory. Historically, one-sided protection of these wholesome marks isolated an entire classification of trademarks technically qualified for dilution protection, termed "unwholesome marks." Unwholesome marks are famous marks that either represent salacious goods or services or maintain a constant seamy, gritty, or tawdry appearance. This Comment explores the evolution of dilution theory and its relational effect on unwholesome marks. I hypothesize that courts have construed the dilution doctrine too narrowly and, in doing so, precluded qualified unwholesome marks from bringing viable dilution claims. Part I offers a necessary foundation of trademark protection. Part II explains dilution by tarnishment history and theory before 1995. Part III explains dilution law after 1995, following the transition from the FTDA to the TDRA. In addition, Part III explores Moseley v. V Secret Catalogue, Inc.'s influential effect on dilution history. Part IV explores burnishment theory and possible methods for implementation and, finally, Part V justifies the need for a burnishment claim. [ABSTRACT FROM AUTHOR]

Street art is visual art created in public spaces, many times at the behest of the communities in which the work is created. It is a derivative of graffiti, which is the illicit marking of public locations, usually on buildings or train cars. Retailers' appropriation of street art and graffiti is becoming commonplace, causing confusion in the market. As a result, street artists have filed an increasing number of copyright and trademark infringement lawsuits to protect their intellectual property rights. There is a debate regarding whether these artists are entitled to trademark protection given the expressive nature of their marks. Courts are reluctant to grant trademark protection since expressive works are traditionally protected under copyright law. Most street artists, as opposed to creators of "fine art," however, use marks in a trademark manner to build reputations and identify the source of their works. This Note argues that courts should broadly interpret the Lanham Act's "use in commerce" requirement to validate marks used by street artists. Street art substantially affects commerce and therefore should be covered by the Commerce Clause. Abroad interpretation furthers Congress's intent under trademark law to prevent consumer confusion. In the alternative, this Note contemplates treatment of street artists under the eleemosynary standard reiterated by the Eleventh Circuit Court of Appeals in 2001 in Planetary Motion Inc. v. Techsplosion, Inc., and considers the possibility of adding a famous mark exception to the use in commerce requirement. [ABSTRACT FROM AUTHOR]

The article examines the laws aimed to prohibit trademark bullying in the U.S. Topics discussed include elements of federal and Missouri trademark infringement laws; provision of Lanham Act aimed to protects trademarks used in interstate commerce; and purpose of cease and desist letters for trademark infringement claims.

Initial interest confusion is a controversial doctrine and has, until now, been largely resisted or ignored. Following Interflora v Marks & Spencer (CAII) and OCH-Ziff Management v OCH Capital, it is necessary to ask whether it ought to be accepted within European trade mark law, and if so, where within the current framework it should sit. [ABSTRACT FROM AUTHOR]

The article discusses trademark infringement and theories that such action could cause harm to the trademark owner. It looks at harm theories not related to sales substitution as well as changes in the law of remedies. Particular attention is given to the history of plaintiffs winning cases by claiming confusion regardless if the confusion cost the plaintiff sales or was material to consumers.

The article discusses the similarities between the legal tests for passing off (product counterfeiting) and likelihood of confusion under Great Britain's trademark laws as of 2015, and it mentions the legal concept of misrepresentation in relation to British trademark infringement claims and consumer confusion. Several British trademark infringement legal cases are examined, including Reed Executive PLC v. Reed Business Information Ltd. and Cosmetic Warriors Ltd. v. Amazon.co.uk Ltd.

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 look at the need of creating a federal law to remove the disparity of leverage trademark holders in the U.S. small businesses as of April 2015. Topics discussed include the overactive trademark policing in the country; methods that companies use against trademark bullying; and domestic trademark laws and the trademark law from the foreign jurisdiction.

The article discusses the court case Hana Financial, Inc. v. Hana Bank wherein Hana Financial made allegations on Hana Bank in the District Court for the Central District of California regarding the violation of its registered federal trademark. The District Court granted judgment to Hana Financial on infringement claim and the U.S. Court of Appeals for the Ninth Circuit reversed the decision. The U.S. Supreme Court reviewed the issue and passed judgment in favor of Hana Bank.

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 author focuses on a decision held by the High Court of England and Wales that the use of the word "Pink" by lingerie retailer Victoria's Secret for its clothing sub-brand infringed the registered trade marks of the retail luxury clothing company Thomas Pink under the Trade Marks Act (TMA) 1994. Topics discussed include the challenge to the validity of the mark, partial revocation of the mark, and registered trade mark infringement under TMA. Also mentioned is the likelihood of confusion.

The authors focus on the court case Bimbo SA v. OHIM, Panrico SA which is related to composite trade marks (CTMs), and the approach of the Court of Justice of the European Union (CJEU) to the assessment of composite marks and the likelihood of confusion. They note that the Trade Marks (TM) Directive of the European Union (EU) law provides protection for national trade marks. Also mentioned are decisions held by the CJEU on court cases Sabel v. Puma and Medion v. Thomson.

The article explores the factors that contributed to the introduction of confusion into the legal discourse. The factors include the creation of the registration system itself, developments in the case law around the notion of deception, the breakdown of the rigidities in the law and the changes in how the system saw the individual. The rise of utilitarianism, the acceptance of the internal life of individuals and their possession of knowledge is discussed.

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 article discusses whether a European Union (EU) legal test for trade mark confusion on the Internet differs from the tests that are applied to trade mark infringement in other spheres, focusing on the legal cases OCH-Ziff v. OCH Capital and Interflora v. Marks & Spencer Flowers Direct which deal with initial interest confusion and the likelihood of association online. Community trade marks, Great Britain's Trade Marks Act 1994, and the trade origin of goods or services are examined.

The article focuses on the Court of Justice of the European Union (CJEU) court case Leidseplein Beheer BV and de Vries v. Red Bull GmBH, which dealt with trademark infringement under the European Union (EU) Trade Marks Directive 89/104. Topics include trademark reputation and efforts to prevent trademark confusion.

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]

Most Internet searches result in unpaid (organic or algorithmic) results, and paid ads. The specific ads that are displayed are dictated by the user's search terms ("keywords"). In 2004, Google began offering trademarks for use as keywords on an unrestricted basis, followed in due course by other search engines. Once that happened, any entity (including sellers of competing products) could have their ads appear in response to a search for the trademarked product. Trademark owners responded by filing more than 100 lawsuits in the United States and Europe, making the dispute the hottest controversy in the history of trademark law. Litigation has focused on purchases by competitors--giving the impression that competitors account for a large portion of such purchases. We find that competitors account for a relatively small percentage of keyword purchases, and many trademark owners purchase their own marks as keywords. We also find a high degree of fluctuation in the number of paid ads and the domain names to which those ads are linked. We conclude that the risk of widespread abuse is low. Trademark owners' objections seem to have more to do with objections to free riding than with the zone of interests currently protected by U.S. trademark law. [ABSTRACT FROM AUTHOR]

The article focuses on the use of consumer surveys to determine the extent of trademark confusion. Topics include the measurement of advertising on consumers, the use of surveys in trademark infringement litigation, and the International Trademark Association. Information is provided on false advertising laws in the U.S.

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 article focuses on the European Union (EU) court case OCH-Ziff v. OCH Capital, which dealt with whether the inclusion of trademarks in internal company electronic mail (e-mail) should be considered private matter or use in the course of trade. Topics include EU Directive 2008/95, the use of trademarks in private communications, and the doctrine of trademark confusion.

The article discusses U.S. trademark laws and a reported need to protect a brand's reputation as of January 2014, focusing on various defenses to trademark infringement such as fair use, parody, and noncommercial use. Trademark use is addressed in relation to unsponsored product placements in mass media. Trademark confusion and dilution claims are assessed, along with the U.S. Lanham Act and the distinctiveness of a trademark. The U.S. Constitution's Commerce Clause is also examined.

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 the British court case BSkyB v. Microsoft, which dealt with actual evidence of trademark confusion. Topics include the passing off violation of trademark law, counterclaims for invalidity, and retaliation for trademark infringement. Information is provided on the primary law of registered trademark infringement.

The article focuses on trademark law interpretation by U.S. federal circuit courts in 2013. Topics include the difference between senior and junior users in cases of reverse trademark confusion, the federal courts' interpretation of trademark law in the U.S., and the authority of the U.S. Patent and Trademark Office (PTO).

The article focuses on the recognition of personality rights in Great Britain in 2013. Topics include the expansion of passing off rights, the development of trademark law, and the enforcement of image rights contracts. Information is provided on breach of confidence actions, trademark confusion, and character merchandising.

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.

This Article critically examines the core infringement standard for trademark law--the "likelihood of confusion" test--which imposes liability if an appreciable number of consumers are likely to be confused by the defendant's use of its mark. The test is a mess. It produces bad results, is doctrinally incoherent, and lacks a sensible normative foundation. It chills socially valuable uses and facilitates excessively broad expansions of trademark law, and it includes factors that make no sense as predictors of likely confusion. Most importantly, the test erroneously assumes that consumer confusion is enough to warrant liability without regard to the harmful consequences or the moral wrongfulness of the defendant's conduct. This Article diagnoses these problems and proposes a set of promising reforms. It begins by presenting a systematic history of the test's origins. The likelihood of confusion test emerged in the early 1960s as a compromise between conflicting views about the proper scope of protection against noncompeting uses, a compromise that papered over the conflict without resolving the underlying normative disagreement. The result is a test without a secure normative foundation and one that remains plagued by the conflicts and disagreements that gave it birth. The test's history also suggests a promising avenue for reform. To improve the infringement standard, one must start at the normative level and work from a coherent theory of trademark law's goals. This Article distinguishes between moral and economic goals and fits infringement standards to the most plausible justifications for protecting marks. In those cases involving a moral wrong, such as intentional deception, moral principles should shape the test. In those cases where the economic goals of trademark law are paramount, the test should focus not only on the probability of confusion but also on the trademark-related harm that confusion generates. [ABSTRACT FROM AUTHOR]

The article focuses on the U.S. court case Network Automation Inc. v. Advanced Systems Concepts Inc., which dealt with the violation of trademark law under the U.S. Lanham Act. Topics include the use of a trademark as a search-engine keyword, the three pronged 'troika test,' and the difference between source confusion and initial interest confusion.

This Note discusses the proposed rulemaking by the FCC in order to empower consumers against "bill shock." Bill shock is described as what a consumer experiences when he or she receives a bill for his or her cellular phone that is much higher than expected, usually on account of roaming charges. This Note will argue in favor of rulemaking by the FCC and explain how the consumer will be empowered against the confusion of the current system. [ABSTRACT FROM AUTHOR]

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 authors argue that the Great Britain Court of Appeal's ruling in the 2015 trade mark infringement case J.W. Spear & Sons v. Zynga Inc. will impact a trade mark holder's rights to other features that are used in association with the mark, and discuss the similarities and differences between the word-related game "SCRABBLE" and the defendant social gaming company's "SCRAMBLE" and "SCRAMBLE WITH FRIENDS" mobile apps. Product counterfeiting laws and trade mark confusion are examined.

The article discusses the Intellectual Property High Court of Japan's reported decision to dismiss a trade mark invalidation appeal from the Stella McCartney Ltd. fashion company on the ground that the ST ELLA junior trade mark owned by the Wong Kwai Hua cosmetics firm was not similar to the senior ST ELLA-related trade mark registrations owned by musician Paul McCartney's daughter Stella McCartney. The Likelihood of trade mark confusion and Malaysian corporations are examined..