Confusion

Trademark Law
Confusion for purposes of the Lanham Act is shown where there is a "likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question" or where "consumers are likely to believe that the challenged use of a trademark is somehow sponsored, endorsed, or authorized by its owner." Thus, "[c]onfusion" for purposes of the Lanham Act includes confusion "of any kind, including confusion as to source, sponsorship, affiliation, connection or identification."

Under the Lanham Act, actionable "confusion" may take a number of forms. In some cases, there may be actual confusion among members of the consuming public, and the plaintiff may be able to demonstrate &mdash; even at the preliminary injunction stage of the case &mdash; such actual confusion. A likelihood of confusion is actionable even absent evidence of actual confusion.

Confusion need not be limited to the "point of sale" to be actionable under the Lanham Act. The Second Circuit has held that confusion among non-purchasers, arising from use of a mark outside of a retail environment after any sale or purchase of a product has concluded, is actionable under the Lanham Act. Clinique Labs., 945 F.Supp. at 558 (S.D.N.Y. 1996) (use of disclaimers insufficient to address post-sale confusion among consumers).