As we have seen, the test of infringement is whether or not there is a likelihood of confusion between two marks. This test is unquestionably subjective, resting as it does on the necessity of assumptions with respect to how people will view two different marks. The best the law can do, under such circumstances, is to provide guidelines to follow in determining an appropriate response with respect to the likelihood of confusion question.

The final word in the federal court system (in Washington and the other western states) short of the the U.S. Supreme Court comes from the Ninth Circuit Court of Appeals. In determining whether a likelihood of confusion exists, the Ninth Circuit relies on the Sleekcraft test, which considers (the next 8 links are side trips): (1) the similarity of the marks; (2) the relatedness or proximity of the two companies' products or services; (3) the marketing channels used by the parties; (4) the strength of the asserted mark; (5) the infringing party's intent in selecting its mark; (6) the degree of care consumers are likely to exercise (7) evidence of actual confusion; and (8) the likelihood of expansion in product or service lines. See Sleekcraft Boats, 599 F.2d at 348-49.

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