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This information is taken directly from the court opinion. It is not taken out of context nor is it altered. Relevant footnotes are included at the bottom.

From Rosenfeld v. WB Saunders, 728 F. Supp. 236 - US: Dist. Court, SD New York 1990

The role of disclaimers in trademark infringement cases under section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1) (1988), provides an appropriate analogy that mitigates against a finding of a likelihood of confusion in the instant action. The Second Circuit has repeatedly recognized that an effective disclaimer can significantly reduce the potential for consumer confusion caused by an infringing product if it clearly designates the source of the product. See, e.g., Home Box Office, 832 F.2d at 1315; Charles of the Ritz Group, 832 F.2d at 1324; Soltex Polymer Corp. v. Fortex Indus., Inc., 832 F.2d 1325, 1330 (2d Cir. 1987). To successfully employ the use of a disclaimer, the infringing party has an affirmative duty to "come forward with evidence sufficient to demonstrate that any proposed materials would significantly reduce the likelihood of consumer confusion." Home Box Office, 832 F.2d at 1316. Where the likelihood of confusion is substantial, the disclaimer must be prominent and disclose the competitive relationship between the two companies in a nonambiguous manner. Charles of the Ritz Group, 832 F.2d at 1324. Alternatively, where the likelihood of confusion is minimal to moderate, the court has broader discretion to uphold the adequacy of the disclaimer. See Soltex Polymer Corp., 832 F.2d at 1330. Thus, courts must examine the effectiveness of disclaimers on a case by case basis "by considering the circumstances of the relevant business and its consumers." Home Box Office, 832 F.2d at 1315.

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