A stark circuit split mars the consistency of trademark infringement analyses within U.S. Circuit Courts of Appeal; some circuits review likelihood of confusion as a matter of fact, while others review it as a matter of law. This disparity places appellants at a disadvantage in some circuits and unnecessarily hinders the function of appellate courts by constraining their review of a substantially subjective balancing of facts. This Note concludes that although the individual factors indicating a likelihood of confusion are issues of fact, the ultimate issue of likelihood of confusion should be reviewed as a matter of law, allowing Circuit Courts to ensure that the complex, multi-factored analysis is applied consistently.
Richard A. Dilgren III,
As a Matter of Fact, It's a Question of Law: A Case for De Novo Review of Likelihood of Confusion in Trademark Cases,
28 Hastings Comm. & Ent. L.J. 109
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol28/iss1/3