Actual confusion is considered the sine qua non of trademark infringement. The presence of actual confusion can carry the day in proving a likelihood of confusion entitling the claimant to summary judgment. But not all confusion amounts to “actual” confusion.

Claimants often point to questions raised about a relationship between respective products or companies. In contrast to actual confusion, such “enquiry confusion,” while relevant, is almost never enough. In the case at hand, the plaintiff pointed to a Facebook post in which a consumer asked whether defendant's product was associated with plaintiff. In denying summary judgment, the judge didn't "find that Facebook post to be very helpful at all. The person was bothering to ask if the products were related . . . .”

Indeed, enquiry confusion generally shows an understanding that the products may be unrelated. By contrast, an example of actual confusion would be a consumer complaint to plaintiff about a product that was actually that of defendant. In that example, there is no doubt as to the consumer's mistaken belief as to source.

When assessing the value of examples of consumer confusion in the context of proving trademark infringement, it is important to understand that not all confusion is equal.

"The actual confusion, I'm concerned about whether that [factor is] even present at all," Judge Sweeney said. "I think it's a close call, but I don't feel comfortable ruling as of today."

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