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A&H Sportswear, Inc. v. Victoria's Secret Stores, Inc. - 237 F.3d 198 (3d Cir. 2000)


A court measures federal trademark infringement, 15 U.S.C.S. § 1114, and federal unfair competition, 15 U.S.C.S. § 1125(a)(1)(A), by identical standards. To prove either form of Lanham Act violation, a plaintiff must demonstrate that (1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the defendant's use of the mark to identify goods or services causes a likelihood of confusion. The plaintiff bears the burden of proof.


Plaintiff A&H Sportswear Company (A&H), which manufactures 10 percent of all swimsuits made in the United States, filed suit against Defendant Victoria's Secret, a lingerie leviathan that recently entered the swimwear market, for trademark infringement. A&H alleged that Victoria's Secret's the "Miracle Bra" swimwear mark violated the Lanham Act because it was confusingly similar to A&H's "Miraclesuit" swimwear mark, which A&H registered first. The district court concluded that A&H had failed to show by a preponderance of the evidence that Victoria's Secret’s Miracle Bra swimwear mark created a likelihood of either direct or reverse confusion with the Miraclesuit product. A&H sought appellate review.


Is a typical consumer likely to confuse MIRACLESUIT swimwear with THE MIRACLE BRA swimwear?




With regard to the claim of direct confusion, the Court of Appeals for the Third Circuit held that the district court did not clearly err in concluding that the marks themselves were not confusingly similar, considering their overall commercial impression, and did not make an error of law in choosing to consider Victoria's Secret's housemark and the disclaimer. With regard to the reverse confusion claim, the court held that the district court legally erred in fashioning a threshold "economic disparity" requirement before considering the reverse confusion claim.

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