Lerner and Rowe PC, an Arizona Corporation v. Brown Engstrand & Shely LLC, dba Accident Law Group, an Arizona Corporation, et al.

Through the Lanham Act, Congress secures to the owner of a trademark the goodwill of its business and protects the ability of consumers to distinguish among competing producers. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 105 S. Ct. 658, 663 (1985). In an action for trademark infringement under the Lanham Act, the plaintiff is required to demonstrate (1) that it has a protectable ownership interest in its mark and (2) that, without its consent, the defendant used the plaintiff’s mark in commerce in such a way that is likely to cause consumer confusion. 15 U.S.C. §§ 1114(1), 1125(a)(1). Courts have uniformly approached the question of determining whether the use of another’s trademark is likely to cause consumer confusion by weighing various factors in a balancing test. See e.g., AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-349 (9th Cir. 1979). The questions presented are:

1. Whether the Ninth Circuit has created conflicts with the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits via its analysis of factors that determine likelihood of consumer confusion in trademark infringement actions.

2. Whether the Ninth Circuit has frustrated the goals of the Lanham act via its analysis of factors that determine likelihood of consumer confusion in trademark infringement actions.