9th Cir. Model Jury Instr. (Civil) 15.18

(15 U.S.C. §§ 1114(1) and 1125(a))

The plaintiff [name] asserts that [insert trademark] is a trademark for its goods. The plaintiff [name] contends that the defendant [name]’s use of [insert the defendant’s mark] in connection with the defendant [name]’s [insert the defendant’s product] infringes the plaintiff [name]’s trademark because it is likely to cause confusion.

You must consider whether a reasonably prudent consumer in the marketplace is likely to be confused as to the origin of the goods bearing one of the marks.

I will suggest some factors you should consider. You should not focus on any one factor to resolve whether there was a likelihood of confusion, because you must consider all relevant evidence. As you consider the likelihood of confusion you should examine the following:

(1) Strength or Weakness of the Plaintiff’s Mark. The more distinctive the plaintiff’s mark is and the more the consuming public recognizes the plaintiff’s trademark, the more likely it is that consumers would be confused about the source of the defendant’s goods if the defendant uses a similar mark.

(2) The Defendant’s Use of the Mark. If the defendant and the plaintiff use their trademarks on the same, related, or complementary kinds of goods, there may be a greater likelihood of confusion about the source of the goods than otherwise.

(3) Similarity of the Plaintiff’s and the Defendant’s Marks. If the overall impression created by the plaintiff’s trademark in the marketplace is similar to that created by the defendant’s trademark in [appearance] [sound] [or] [meaning], there is a greater chance [that consumers are likely to be confused by the defendant’s use of a mark] [of likelihood of confusion]. [Similarities in appearance, sound or meaning weigh more heavily than differences in finding the marks are similar.]

(4) Actual Confusion. If the defendant’s use of the plaintiff’s trademark has led to instances of actual confusion, this strongly suggests a likelihood of confusion. However, actual confusion is not required for a finding of likelihood of confusion. Even if actual confusion did not occur, the defendant’s use of the trademark may still be likely to cause confusion. As you consider whether the trademark used by the defendant creates for consumers a likelihood of confusion with the plaintiff’s trademark, you should weigh any instances of actual confusion against the opportunities for such confusion. If the instances of actual confusion have been relatively frequent, you may find that there has been substantial actual confusion. If, by contrast, there is a very large volume of sales, but only a few isolated instances of actual confusion, you may find that there has not been substantial actual confusion.

(5) The Defendant’s Intent. Knowing use by the defendant of the plaintiff’s trademark to identify similar goods may strongly show an intent to derive

benefit from the reputation of the plaintiff’s mark, suggesting an intent to cause a likelihood of confusion. On the other hand, even in the absence of proof that the defendant acted knowingly, the use of the plaintiff’s trademark to identify similar goods may indicate a likelihood of confusion.

(6) Marketing/Advertising Channels. If the plaintiff’s and the defendant’s goods are likely to be sold in the same or similar stores or outlets, or advertised in similar media, this may increase the likelihood of confusion.

(7) Consumer’s Degree of Care. The more sophisticated the potential buyers of the goods or the more costly the goods, the more careful and discriminating the reasonably prudent purchaser exercising ordinary caution may be. They may be less likely to be confused by similarities in the plaintiff’s and the defendant’s trademarks.

(8) Product Line Expansion. When the parties’ products differ, you may consider how likely the plaintiff is to begin selling the products for which the defendant is using the plaintiff’s trademark. If there is a strong possibility of expanding into the other party’s market, there is a greater likelihood of confusion.

[(9) Other Factors. [Insert any other factors that bear on likelihood of confusion.]]