Court enforcement of trademark law varies from case to case, creating non-uniformity. AFF spikes in litigations backlogs courts with long, confusing, and unprecedented cases.

Among other things, these factors are designed to ensure that the determination of whether one mark infringes another is not merely a subjective decision about whether the second-comer’s mark so closely resembles the first-comer’s mark that it would be unfair to allow the later entrant to continue. Trademark law does not confer a “right in gross” to a mark but, rather, confers rights limited to what is necessary to prevent consumer confusion and protect the good will of the trademark owner.9 Thus, trademark infringement typically is not determined based solely upon a side-by-side comparison of the two marks.10 ¶9 In determining whether confusion is likely, evidence of actual confusion is often given considerable weight and preferred status. Some courts view evidence of actual confusion as “persuasive” evidence of likelihood of confusion.11 Other courts have used a variety of adjectival phrases to describe the utility of the presence or lack of evidence of actual confusion.12 Some decisions even give evidence of actual confusion status as a seen as representative examples of how others in the marketplace are likely to react.14 As put by one court: “[a]ctual confusion is . . . extremely probative of the likelihood of confusion, in that proof of confusion by actual customers is strong evidence that a hypothetical reasonable customer would also be deceived.”15 As another court explained: “[i]f enough people have been actually confused, then a likelihood that people are confused is established.”16 Not all evidence of actual confusion, however, is entitled to preferred or favored status. Rather, such evidence must first survive the particular level of scrutiny given to evidence of the types at issue by the jurisdiction in question.17 ¶10 Notwithstanding this seeming judicial preference, statements giving undue weight to evidence of actual confusion are not consistent with other judicial pronouncements regarding the infringement test as a multi-factor test or with other judicial pronouncements giving preferred status to other factors in that test. For example, a number of courts have stated that the similarity of the parties’ marks is the most important factor in determining likely confusion.18 Intuitively, that approach makes characterizing evidence of “past confusion” as “persuasive proof that future confusion is likely” but holding that reported instances of confusion were “negligible in light of extent of defendant’s activities and where “countervailing circumstances . . . lessen[ed] significantly the impact of any actual confusion which may have occurred”); AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 353 (9th Cir. 1979) (“[T]his factor is weighed heavily only when there is evidence of past confusion or, perhaps, when the particular circumstances indicate such evidence should have been available.”); Holiday Inns, Inc. v. Holiday Out in Am., 481 F.2d 445, 448-49 (5th Cir. 1973) (noting that plaintiff was attempting to use evidence of actual confusion to shift burden of proof to defendant but finding evidence of actual confusion to be insufficient). Mark D. Robins sense. Where the parties are competitors for the same type of goods, at least one court has gone one step further to opine that, in such cases, courts generally need not look beyond the marks at issue.19 Indeed, try as the courts may to escape the appearance of subjective comparisons between the parties’ marks by using a multi-factor test, nearly all judicial recitations of factors place the similarity of the marks first in the list of factors. Judges reason that, ultimately, it is the similarity of the marks that will drive consumer confusion. Yet, in instances where the defendant intended to trade on the plaintiff’s good will, that factor has also been recognized to have potential preeminent status.20 Courts in the Seventh Circuit have deemed three factors—similarity of the marks, the defendant’s intent, and actual confusion—to be the most important.21 In other cases, courts have found different subsets of the likelihood of confusion factors to be of paramount importance, with emphasis on the similarity of marks.22 Two commentators have deemed the most important factors to be the strength of the plaintiff’s mark, the similarity between the marks, and the defendant’s intent.23 In any event, actual confusion is but one of several factors relevant to determining the likelihood of confusion.