TRADEMARK: ACTUAL CONFUSION
is no more compelling evidence of the likelihood of confusion than
evidence of actual confusion. That being said, however, there are
a host of hurdles to negotiate with respect to obtaining and presenting
such actual confusion evidence.
In the first place, if the alleged infringement is found early and the aggrieved party acts quickly, there will be little time for actual instances of confusion to occur.
If the conflicting trademarks appear side-by-side for an extended period of time so that there will be time for actual instances of confusion to arise, on the other hand, the aggrieved party risks being unable to do anything about the infringement anyway because of the defenses of waiver and laches.
Moreover, evidence of instances of actual confusion are subject to the same objections applicable to any other kind of evidence. They may be hearsay, there may be only isolated incidents, the incidents discovered may be created by one or the other of the parties to skew the results of the case in the creator's favor, the testimony or other evidence of the actual confusion may be unconvincing, and so forth.
Since the test of likelihood of confusion is totally subjective, at best, it is reasonable to suppose that any judge would be pleased to rest a decision on convincing actual evidence, but it is unlikely that convincing actual evidence will be found to exist.
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