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Trademarks Class 15

Trademarks Class 15. Reverse confusion Parody. A&H v. Victoria’s Secret.

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Trademarks Class 15

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  1. Trademarks Class 15 Reverse confusion Parody

  2. A&H v. Victoria’s Secret “While the essence of a direct confusion claim is that a junior user of a mark is said to free-ride on the ‘reputation and good will of the senior user by adopting a similar or identical mark,’ reverse confusion occurs when ‘the junior user saturates the market with a similar trademark and overwhelms the senior user.’ ” [421]

  3. The Lapp factors “(1) the degree of similarity between the owner’s mark and the alleged infringing mark; (2) the strength of the owner’s mark; (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; (5) the intent of the defendant in adopting the mark; (cont’d)

  4. Cont’d (6) the evidence of actual confusion; (7) whether the goods, though not competing, are marketed through the same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties’ sales efforts are the same; (9) the relationship of the goods in the minds of consumers because of the similarity of function; (10)other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant’s market, or that he is likely to expand into that market.”

  5. Disclaimers, forward and reverse Forward confusion: disclaimer by junioruser Reverse confusion: disclaimer by senioruser Roll-X Watches MiracleSuit swimwear “Not associated in any way with the famous Rolex brand watches.” “Not associated in any way with the Miracle Bra swimsuit from Victoria’s Secret.”

  6. Commercial strength of the mark “[I]n a direct confusion claim, a plaintiff with a commercially strong mark is more likely to prevail than a plaintiff with a commercially weak mark. Conversely, in a reverse confusion claim, a plaintiff with a commercially weak mark is more likely to prevail than a plaintiff with a stronger mark . . . .” [424]

  7. Conceptual strength of the mark “When it comes to conceptual strength, however, we believe that, just as in direct confusion cases, a strong mark should weigh in favor of a senior user.” [425]

  8. Actual confusion “[E]vidence that consumers thought that The Miracle Bra was an A & H product would be probative on a direct confusion claim, but not on a reverse confusion claim. Conversely, evidence that consumers thought that Miraclesuit was a Victoria’s Secret product would support a reverse confusion claim, but not a direct confusion claim.” [427]

  9. No economic disparity threshold for reverse confusion “[T]he District Court legally erred in fashioning a threshold ‘economic disparity’ requirement before a reverse confusion claim will even be considered.” [430]

  10. Anheuser-Busch, Inc. v. L & L Wings

  11. From the court’s opinion

  12. All factors need not be considered “[T]he jury was entitled to give decisive weight to the predominant differences between the T-shirt design and the Budweiser label. Where there is no evidence of actual confusion and a jury reasonably concludes that there is no likelihood of confusion because of the differences between the marks, consideration of the remaining Pizzeria Uno factors is unnecessary.” [435]

  13. It’s a parody; lighten up “The T-shirt design fits a conventional definition of trademark parody—it is ‘a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner.’ ” [436]

  14. Parody doesn’t depend on confusion “An intent to parody, then, is an intent to benefit from the original trademark, but such an intent is not necessarily probative of a likelihood of consumer confusion.” [437]

  15. Budweiser ad or parody?

  16. Anheuser-Busch v. Balducci

  17. How to factor in First Amendment interests “Rather than first considering whether Balducci’s ad parody was likely to confuse the public and then considering the scope of First Amendment protection, the district court conflated the two. The court essentially skewed its likelihood of confusion analysis in an attempt to give ‘special sensitivity’ to the First Amendment, holding Anheuser Busch to a higher standard than required in a ‘classic trademark infringement case.’ ” [444]

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