Ninth Circuit Cements Counterfeit-Confusion Link in Beauty Case

The Lanham Act may not include the word “confusion” in its section on counterfeiting, but the Ninth Circuit made clear it’s essential.

A precedential decision on Oct. 1 affirmed the rejection of a beauty product company’s argument that the exact copying of its “Eye Dew” trademark is a counterfeit trademark—regardless of other product and branding differences. A lower court was correct to refuse to presume confusion just because the marks were identical based on a variety of precedents, the U.S. Court of Appeals for the Ninth Circuit said.

The Ninth Circuit had never expressly held that counterfeiting requires a likelihood ...