Sophistication, Bridging the Gap, and the Likelihood of Confusion: An Empirical and Theoretical Analysis

Recent commentary has rightly lamented the uncertain state of the multifactor test for trademark infringement. “This heuristic device is the fulcrum of American trademark law,” yet the courts are in substantial disagreement as to which factors are relevant to an evaluation of the likelihood of confusion. The doctrinal divide is substantial: “Some circuits claim to weigh heavily under certain factors what other circuits claim to ignore, and nearly every factor or combination of factors has been called the ‘most important’ by one court or another.”