Tabberone Logo

Tabberone is pronounced tab ber won
not tay ber own

Tabbers Temptations Home | Site Index | Disclaimer | Email Me!
"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

[page 889]
2. Confusion

In addition to showing that its mark has acquired secondary meaning, a plaintiff in a trademark infringement suit must demonstrate that the challenged mark is likely to confuse consumers. Barbecue Marx, Inc. v. 551 Ogden, Inc., 235 F.3d 1041, 1043 (7th Cir.2000). Customer confusion takes various forms, including "initial interest" confusion, "source" or "associational" confusion and "post-sale confusion." Initial interest confusion occurs when a customer is lured to a product by [page 890] the similarity of the mark, even if the customer realizes the true source of the goods before the sale is consummated. Promatek Industries, Ltd. v. Equitrac Corp., 300 F.3d 808, 812 (7th Cir.2002). This type of confusion is actionable under trademark laws because the defendant "reaps the goodwill" that plaintiff has developed in its mark. Id. Associational confusion occurs when the similarity of the parties' trade dress leads consumers to believe that the two parties are associated in some way. Computer Care v. Service Systems Enterprises, Inc., 982 F.2d 1063, 1070 (7th Cir.1992). For example, if a customer saw the Toyota trademark on a Honda vehicle, the customer may assume that Toyota and Honda are now affiliated. This type of confusion could damage a plaintiff if consumers are dissatisfied with the defendant's product. Post-sale confusion occurs when a potential customer sees a product bearing the plaintiff's trade dress and mistakenly attributes the product to the plaintiff, thereby influencing his or her buying decision, either positively or negatively. CAE, Inc. v. Clean Air Engineering, Inc., 267 F.3d 660, 683 (7th Cir. 2001); see also Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 872-73 (2d Cir.1986) (explaining that, although product labels informed actual buyers in the store about the source of the plaintiff's jeans, similarity in the stitching patterns could cause prospective buyers who saw the jeans outside the store to associate the defendant's jeans with the plaintiff, thereby influencing their buying decision).


wordpress analytics