Sophisticated means not stupid. Not stupid means not likely to be confused.

Are we confused yet?

The New York Law Journal reports on a recent Southern District of New York opinion which gave people with milliions of dollars to invest credit for being quite sure of which company was going to invest it. It was a lawsuit between a hedge fund called Omicron Capital LLC and “an investment advisor to hedge funds” with the same exact name. There had indeed been some confusion — by a reporter writing for a trade publication — which triggered the Lanham Act litigation.

In summarily dismissing plaintiff hedge fund’s complaint, the court . . . concluded that “given their sophistication, the consumers of the [parties’] services were unlikely to be confused.” . . .

The “stupidization” of the reasonable trademark consumer is one of the big “issues” I have with where trademark law has been heading, and this decision is another good antidote to the inclination of courts to ignore the need to prove likelihood of confusion and assume damage from simlarity — even identity. It’s not an issue regarding the main bane of my existence, initial interest confusion, which to the contrary posits that even though consumers are smart enough to figure out the difference between A and B, their feelings and those of the trademark have been hurt enough in the process to make the claim actionable.

The complete decision is here.

UPDATE:  Law journal article — in the Trademark Reporter, no less — here.

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Ron Coleman

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