The Role of Actual Confusion Evidence in Federal Trademark Infringement Litigation

This article seeks to provide an overall discussion of the role of actual confusion evidence in federal trademark infringement actions and to reconcile the differences among the courts as to the value given to various types of actual confusion evidence. Section I discusses the effect of the existence or absence of actual confusion evidence in infringement actions, and the relative importance which the courts place on such evidence. Section II discusses the various types of evidence which trademark infringement plaintiffs have proffered in attempting to prove the existence of actual confusion, and the weight which the courts have given to these types of evidence. This section also discusses whose confusion (e.g., consumers, suppliers, competitors) is relevant to and probative of actual confusion, and how much evidence of actual confusion is necessary to have this factor support a finding of a likelihood of confusion.

Finally, Section III discusses the evidentiary problems, such as hearsay and other concerns, encountered by those attempting to introduce evidence of actual confusion.