"It's Third and Eight!": The Third Circuit Adopts an Eight-Factor Test for Likelihood of Confusion in False Enforcement Cases and Flags Related Defenses in Facenda v. NFL Films

Authors

Justin Kerner

Abstract

Due to the increased importance of celebrity in American culture, the volume of false endorsement claims under Section 43(a) of the Lanham Act has risen steadily in the last twenty years. In the third circuit, courts have adopted a three-element test for false endorsement cases: plaintiffs must prove that (1) the mark in question is valid and legally protectable; (2) the plaintiff owns the mark; and (3) the defendant's use of the mark will likely create confusion. In Facenda v. NFL Films, the Third Circuit Court of Appeals adopted a eight-factor test for the third element, likelihood of confusion. This article provides a playbook for the court's analysis of the plaintiff's false endorsement claim and the defendant's contention that the Lanham Act posed an unconstitutional restriction on free speech. It also examines the factors that courts may consider in determining likelihood of confusion and offers best practices to plaintiffs' and defendants' counsel.

Recommended Citation

Justin Kerner, "It's Third and Eight!": The Third Circuit Adopts an Eight-Factor Test for Likelihood of Confusion in False Enforcement Cases and Flags Related Defenses in Facenda v. NFL Films, 32 UC Law SF Comm. & Ent. L.J. 111 (2009).
Available at: https://repository.uclawsf.edu/hastings_comm_ent_law_journal/vol32/iss1/4