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Volume19
Year2010
TitleLikelihood of Confusion: Subjective Guilt, Objective Deception
Author(s)Nick Cole
First Page308
AbstractThe contemporary common law treats trademark infringement as a strict-liability tort, with "likelihood of consumer confusion" as the key element once plaintiff's priority of use has been established. It was not always so. Not long ago the common-law claim of trademark infringement sounds in intentional tort-a subcategory of the torts of deceit (common law) and unfair competition (equity)- and evidence of consumer "confusion" or its likelihood was just one of various ways a trademark holder might use to establish a defendant's intent to deceive.