Question: Barton Beebe, An Empirical Study of the Multifactor Tests for Trademark Infringement , 94 Cal. Rev. 1581 (2006), reports on an empirical study of 331

Barton Beebe, An Empirical Study of the Multifactor Tests for Trademark Infringement, 94 Cal. Rev. 1581 (2006), reports on an empirical study of 331 litigated trademark cases and concludes that the factors do not have equal importance. According to Beebe, the following flowchart correctly decides every case in the sample set: Are the marks similar? If NO, then the defendant wins. Did the defendant act in bad faith? If YES, then the plaintiff wins. Was there actual confusion? If YES, then the plaintiff wins. Were the goods proximate? If NO, then the defendant wins. Is the plaintiff's mark strong? If YES, then the plaintiff wins; if NO, then the defendant wins.

Questions:

How should Professor Beebe's findings influence our thinking about trademark infringement?

Should it change how lawyers argue cases, how judges decide them, or how we study them in class?

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