The U.S. circuit courts disagree on whether the likelihood of confusion determination in trademark law is a question of fact, law, or both. While the likelihood of confusion issue divides the circuits, scholarly commentary has been substantially uniform. Many legal commentators have argued that the likelihood of confusion determination should be deemed a question of fact for various reasons. In contrast, this Article proposes that the ultimate likelihood of confusion determination should be a question of law because of legal and policy considerations. This Article borrows the reasoning of recent Supreme Court precedent deciding that patent claim construction is a question of law. By proposing a resolution to the circuit split in authority, this Article offers the uniformity in trademark law originally promised by the Lanham Act.
James W. Soong,
Definite Confusion Over Likely Confusion,
19 Hastings Comm. & Ent. L.J. 823
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol19/iss4/3