According to the recently-issued decision, the Ninth Circuit held that – despite Arcona’s argument to the contrary (it argues that it need not show a likelihood of confusion to pursue its trademark counterfeiting claim) and the fact that the appeals court “has not yet expressly held that a counterfeiting claim requires a likelihood of confusion” – the “plain language” of the Lanham Act shows that “‘likely to cause confusion’ is a requirement for a counterfeiting claim.” Finally, the court shot down the “rigid approach” advanced byArcona, in furtherance of which the brand claims that thedistrict court “should have limited its analysis to the identical [EYE DEW] marks only –without looking at the entire product –in assessing consumer confusion.” To this, the Ninth Circuit panel stated that “a court should not myopically focus on only the alleged counterfeit marks to the exclusion of the entire product or even common sense,” noting that while the respective brands’ products in this case “do compete in the same space and same geographic area, there are significant differences between the two products, and the marks should be ‘considered in their entirety and as they appear in the marketplace.’” For example, the use of a counterfeit Louis Vuitton trademark on a handbag is obviously intended to confuse consumers,” Judge Kenneth K. Leewrote. “Put another way, a counterfeit claim is merely ‘the hard core or first degree’ of trademark infringement, and there is nothing in the statutory language of Section 1114 that suggests that a counterfeit claim should be construed differently from an infringement claim.”

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