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78 Trademark Rep. 506 (1988)
Subliminal Confusion: The Misappropriation of Advertising Value

handle is hein.journals/thetmr78 and id is 522 raw text is: Vol. 78 TMR SUBLIMINAL CONFUSION: THE MISAPPROPRIATION OF ADVERTISING VALUE By Steven H. Hartman* I. INTRODUCTION The fundamental inquiry for a determination of trademark infringement under the United States Trademark Act (Lanham Act)1 or state law is whether there is a likelihood of confusion.2 In its classic formulation prior to enactment of the Trade-Mark Act of 1905,' the test for trademark infringement referred to the likelihood of confusion at the point of sale among actual purchasers as to the producer of the defendant's product.4 However, respond- ing to other forms of confusion perceived as commercially injurious made possible by modern marketing practices, the likelihood of confusion test has been expanded to include confusion, mistake or deception beyond who is the producer of the product, beyond that of the immediate purchaser, and beyond that which takes place at the point of sale. Today, likelihood of confusion as to the ex- istence of any commercial relationship between an allegedly in- fringing mark and an established mark is sufficient to trigger liability for infringement under both federal and state trademark infringement law.' Confusion beyond the producer of the product is exemplified by Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd.6 There, the maker of a pornographic movie was found liable for trademark infringement because its movie featured actresses ca- vorting in cheerleader costumes identified with the Dallas Cowboys Cheerleaders, thereby suggesting the commercial cooperation, par- ticipation or, at least, tacit approval of the latter. . Member of the firm of Milgrim Thomajan & Lee P.C., New York, N.Y., Associate Member of USTA; member of the Education Committee, USTA. Copyright © 1988 Steven H. Hartman. 1. Sections 1-45, 15 USC §§1051-1127 (1987). 2. See generally, 2 J. Thomas McCarthy, Trademarks and Unfair Competition §24:1 (2d ed 1984). 3. February 20, 1905, ch 592, 33 Stat 724, 15 USC §§81-108. 4. See Restatement of Torts §730, Comment a (1938); Borden Ice Cream Co. v. Borden's Condensed Milk Co., 201 F 510 (CA 7 1912) (BORDEN for ice cream does not infringe BORDEN for milk). 5. See, eg, Standard Brands, Inc. v. Smidler, 151 F2d 34, 66 USPQ 337 (CA 2 1945); Fleischmann Distilling Corp. v. Maier Brewing Corp., 314 F2d 149, 136 USPQ 508 (CA 9 1963), cert denied 374 US 830, 137 USPQ 913 (1963); Communications Satellite Corp. v. Comet, Inc., 429 F2d 1245, 166 USPQ 353 (CA 4 1970), cart denied 400 US 942, 167 USPQ 705 (1970); Amoco Oil Co. v. Rainbow Show, 748 F2d 556, 224 USPQ 128 (CA 10 1984); Restatement of Torts, supra note 4, §730(b). 6. 604 F2d 200, 203 USPQ 161 (CA 2 1979).

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