kidcobra - 4:14 pm on Mar 28, 2011 (gmt 0)
> Thats right, and the only case for infringment is if the person bought the product thinking it was the brand when it was not.
Establishing the likelyhood of confusion and/or infringement does not necessarily require evidence of actual confusion. Actual confusion is a factor to be considered, but cases are made without actual confusion evidence depending on the strength or weakness of the other factors.
What I'm saying is that the factors are to be considered and weighed. As a court noted: "We do not count beans." (and I would add, "we look at them, we smell them, we taste them, we compare them to different kinds of beans, we cook them, we discuss them, we weigh them, and we weigh them against each other)
The recent case I cited above takes a while to read, but it does survey the current state of judicial thinking in the Ninth Circuit both for the typical factors to be analyzed when considering possible infringement, and the ones employed in the keyword ad context in the case.
And of course, being the internet, this whole thing is a bit of a moving target. The court emphasized that things are not set in stone and have to be adjusted as the technologies and society change. For example, in the internet context, when most people were new to the web, confusion was more likely, all other things being equal. As web consumers become more sophisticated and experienced, confusion is less likely, all other things being equal.