Likelihood of Confusion Not So Simple!
Likelihood of confusion isn’t quite so simple, judges and people! To wit:
While a district court’s simultaneous comparison of two products is not an inappropriate heuristic means of investigating similarities and differences in their respective designs on the way to an ultimate conclusion as to whether the products are likely to leave similar impressions on consumers, district courts must be careful to maintain a focus on the ultimate issue of the likelihood of consumer confusion. As a result, the Lanham Act requires a court to analyze the similarity of the products in light of the way in which the marks are actually displayed in their purchasing context. . . . In such a case, a district court must ask not whether differences are easily discernable on simultaneous viewing, but whether they are likely to be memorable enough to dispel confusion on serial viewing.
The need for a contextual analysis, rather than a simple focus on whether simultaneous viewing is likely to cause confusion, is grounded in the purpose of the Lanham Act.
That’s according to the Second Circuit’s October 12th decision in Louis Vuitton Malletier v. Burlington Coat Factory (hat tip to the online New York Law Journal). (The good fight this time was fought and won by fellow serious-glasses-wearer Ted Max — no, not TV talent man Ted Mack! — of Mintz Levin. But how much longer does this web page stay up? I’m just asking!)