More Recommended Reading: Prof. Beebe's Empirical Study of the Multifactor Likelihood of Confusion Test(s)
Professor Barton Beebe of Cardozo Law School, whose recent paper on the revised dilution statute is available here at the TTABlog, has served up another lucid and valuable article: "An Empirical Study of the Multifactor Tests for Trademark Infringement," 94 Cal. Law Rev. 1581 (2006). (Download here)
Professor Beebe has analyzed the results of all reported federal district court decisions from 2000-2004 in which the court has applied the multifactor likelihood of confusion test applicable in its particular circuit. He provides his observations and conclusions regarding, inter alia, the lack of uniformity in the 13 different tests in the 13 circuits, the dispositive nature of one or more of the factors, the likelihood of success for a plaintiff in the various district courts, and the importance (or lack thereof) of survey evidence. As he states in his introduction:
"Courts, commentators, and practitioners have all the while speculated about which factors, if any, drive the outcome of the tests, how the factors interact, and, most importantly, whether the circuits' different tests, given the same facts, would yield different outcomes. With a view to the settling of these questions, and ultimately to the reform of the multifactor tests, this Article sets forth the results of an empirical study of all reported federal district court opinions for the five-year period from 2000 to 2004 in which a multifactor test for the likelihood of consumer confusion was used."
Rather that giving away his answers, I recommend that you read this thought-provoking paper.