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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

[page 203]
e. Actual confusion

Evidence of actual confusion is not necessary to a finding of a likelihood of confusion, but "it is nevertheless the best evidence of a likelihood of confusion." Amstar [page 204] Corp., 615 F.2d at 263. Actual confusion that is later dissipated by further inspection of the goods, services, or premises, as well as post-sale confusion, is relevant to a determination of a likelihood of confusion. See 3 McCARTHY, supra, 23:6-:7. "Infringement can be based upon confusion that creates initial consumer interest, even though no actual sale is finally completed as a result of the confusion." 3 id. 23:6; see also Dr. Seuss Enters., 109 F.3d at 1405 (noting that no sale must be completed to show actual confusion); Mobil Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254, 259 (2d Cir. 1987) (finding liability for initial-interest confusion). Initial-interest confusion gives the junior user credibility during the early stages of a transaction and can possibly bar the senior user from consideration by the consumer once the confusion is dissipated. Id.; 3 McCARTHY, supra, 23:6.

EPE presented witnesses who testified that they initially thought the Defendants' bar was a place that was associated with Elvis Presley and that it might have Elvis merchandise for sale. The witnesses all testified that, upon entering and looking around the bar, they had no doubt that EPE was not affiliated with it in any way. Despite the confusion being dissipated, this initial-interest confusion is beneficial to the Defendants because it brings patrons in the door; indeed, it brought at least one of EPE's witnesses into the bar. Once in the door, the confusion has succeeded because some patrons may stay, despite realizing that the bar has no relationship with EPE.[7] This initial-interest confusion is even more significant because the Defendants' bar sometimes charges a cover charge for entry, which allows the Defendants to benefit from initial-interest confusion before it can be dissipated by entry into the bar. Additionally, the finding by the district court that the Defendants' advertising practices caused actual confusion shows that actual confusion occurred when consumers first observed the mark in commerce. See Elvis Presley Enters., 950 F.Supp. at 797 (noting that EPE also established actual confusion in relation to advertisements with "The Velvet Elvis" mark in a context connoting Elvis Presley).


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