Clarifying Confusion

Rex Real Estate, a commercial real estate broker, sued Rex Exchange, a facilitator of online home sales. The defendant won judgment as a matter of law at trial, after which the Fifth Circuit affirmed in part and reversed in part. In its opinion, the Court  sought to “unconfuse” its precedent about confusion in trademark-infringement cases, reviewing the holdings of its cases and applying the resulting framework to that aspect of the case:

Plaintiff’s anecdotal proof of confusion does not involve swayed customer purchases or initial interest confusion that can result in swayed business. It also does not involve “potential customer[s] considering whether to transact business with one or the other of the parties.” But it has presented instances of potential customers of each respective company mistakenly contacting the other. . These instances are relevant, but their weight is lessened by Plaintiff’s and Defendant’s high volume of business and extensive advertising. Nevertheless, because Plaintiff has presented some relevant evidence of actual confusion, a reasonable jury could conclude that this digit weighs in its favor.

Rex Real Estate I, LP v. Rex Real Estate Exchange, Inc., No. 22-50405 (Sept. 6, 2023) (citations omitted).