A Side-by-Side Comparison May Not Be the Best Form of Analysis

Tue, 20 Dec 2005 10:55:00 EST

"The U.S. Court of Appeals for the Second Circuit reversed the denial of a preliminary injunction for trademark infringement, noting the lower court was inappropriately focused on a side-by-side comparison of the goods rather than on the purchasing context in which the marks appeared."

"... Given the market conditions and claims of initial-interest and post-sale confusion, the lower court should have 'considered the context in which the marks are displayed and the totality of factors that could cause confusion among prospective purchasers.' In fact, the Second Circuit specifically instructed the lower court 'should give particular weight to any evidence submitted by the parties addressing the overall impression that consumers are likely to have of the handbags when they are viewed sequentially, and in different settings, rather than simultaneously.'"

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