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On the surface, trademark law protects trademarks, defined as any “word, logo or package design, [or some combination thereof,] used by a manufacturer or merchant to identify its goods [or services] and distinguish them from others.” Typical trademark infringement cases involve a “senior” trademark owner seeking to prohibit a subsequent, “junior” user from using the same or similar mark. On a deeper level, however, trademarks also serve as objective, goodwill symbols of consumer satisfaction, representing and reinforcing to the public a distinctive good or service. “In trademark law, the question is always of consumer perception in the marketplace rather than judicial perception in the courtroom.”

The Lanham Act (the Act) governs federal trademark protection, providing for nationwide protection of a trademark against threats, such as the unauthorized reproduction or imitation of a trademark that is “likely to cause confusion, or to cause mistake, or to deceive,” and creates two statutory bases for any confusion-based causes of action. Under the Act, a trademark is “any word, name, symbol, or device . . . used by a person, or . . . which a person has a bona fide intention to use in commerce . . . to identify and distinguish his or her goods . . . from those manufactured or sold by others and to indicate the source of the goods . . . .” Case law and the Act identify four categories of terms that reflect a mark’s eligibility for trademark registration and its deserved amount of protection. Regardless of the amount of protection a mark is eligible to receive, however, the fundamental question under confusion-based infringement actions is “whether there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.”