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37 Berkeley Tech. L.J. 867 (2022)
Trademark Confusion Simplified: A New Framework for Multifactor Tests

handle is hein.journals/berktech37 and id is 910 raw text is: TRADEMARK CONFUSION SIMPLIFIED: A NEW FRAMEWORK FOR MULTIFACTOR TESTS Dagl flmt ABSTRACT Multifactor tests are challenging for judges to apply consistently and accurately. Poorly done, they could result in law without order. How courts determine trademark infringement provides a case study for what experimental psychology and artificial intelligence can offer to reduce bias and variability in multifactor tests. In trademark law, judges must determine the likelihood of consumer confusion to decide whether a mark infringes upon a trademark holder's rights. Plenty of commentaries have criticized the likelihood of confusion tests, but none offer a comprehensive analysis linking the impact of the legal standard's disorder with the root causes of that disfunction. Likewise, none demonstrate how doctrine and technology can work hand in glove to simplify this puzzling standard. This Article draws on empirical studies, case law, and the latest experimental psychology and artificial intelligence literature to shift the debate from critiquing to simplifying the likelihood of confusion standard. It explains how three core factors, combined with two safe harbors and today's deep learning algorithms enable courts to reach consistent and accurate results. The simplified framework will promote fair play, safeguard expressive uses, and enhance access to justice. These takeaways apply more broadly and address defects common to multifactor tests. TABLE OF CONTENTS I. IN TRO D U CT IO N .............................................................................868 II. VARIABILITY AND BIAS OFTEN UNDERLY MULTIFACTOR T E ST S..................................................................................................872 DOI: https://doi.org/10.15779/Z38G737509. C 2022 Daryl Lim. t This manuscript benefited from the author's participation in the twenty-eighth Fordham IP Conference, Giles S. Rich Inn IP American Inn of Court and Pauline Newman IP American Inn of Court Seminar, and World IP Forum. Invited presentations for takeaways featured in this Article include the Indiana University (Bloomington) IP Colloquium, the George Mason University Antonin Scalia Law School C-IP2 Ninth Annual Fall Conference, and the American IP Law Association Emerging Technology Committee and Electronic and Computer Law Committee Roadshow. Professors Jon Lee, Joshua Sarnoff, and Peter Yu provided valuable comments and suggestions. My sincere thanks to Sarah Davidson, Justine McCarthy Potter, Breanna Qin, and Sophia Wallach at the Berkeley Technology Law Journal for their meticulous and helpful editorial assistance.

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