Actual confusion is often called the best evidence of likelihood of confusion for trademark infringement. See King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1091 (10th Cir. 1999) (actual confusion is often considered the best evidence of likelihood of confusion); Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1144 (10th Cir. 2013) (“such empirical data can be a reality check on the more theoretical analysis under the other factors”); see also Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 229 (5th Cir. 2009).

Actual confusion may be shown using consumer surveys. Anecdotal instances of consumer confusion also can be used as evidence of actual confusion, but “isolated” instances of actual confusion could be deemed de minimis which “does not support a finding of a genuine issue of material fact as to the likelihood of confusion.” King of the Mountain Sports, 185 F.3d at 1092 (finding that “seven examples of actual confusion” constituted only a “handful of anecdotal evidence” and was “de minimis”); Water Pik, 726 F.3d at 1150 (“isolated, anecdotal instances of actual confusion may be de minimis and may be disregarded in the confusion analysis”); Universal Money Centers, Inc. v. AT&T Co., 22 F.3d 1527, 1535 (10th Cir. 1994) (“de minimis evidence of actual confusion is especially undermined in this case by the sheer lack of similarity between the marks”); see also Rex Real Est. I, L.P. v. Rex Real Est. Exch., Inc., 80 F.4th 607, 625 (5th Cir. 2023) (“isolated instances of confusion about the affiliation of two companies that do not result in redirected business are not enough to sustain a finding of actual confusion”).

Recently, in Rampart Res., Inc. v. Rampart/Wurth Holding, Inc., No. 2:23-cv-6895, 2024 WL 195999 (E.D. La. Jan. 18, 2024), concerning a motion for preliminary injunction against trademark infringement, the evidence of actual confusion consisted of a misdelivered package by a FedEx driver, and phone calls to the plaintiff who provides land and real estate services. 

          Here, Plaintiff's evidence of actual confusion is entirely anecdotal and consists of a FedEx driver's conflation of the Plaintiff's office with that of the Defendant and a total of 7 phone calls received by Plaintiff at its Baton Rouge office from individuals looking for another “Rampart” business, purportedly Defendant. As for the FedEx driver incident, Plaintiff explains that on one occasion in September 2023, a FedEx driver mistakenly went to Defendant's office instead of Plaintiff's to deliver a package and informed Plaintiff's President that she found the similar names of the parties confusing. While relevant, this singular example does not amount to much as the FedEx driver was not a consumer or potential consumer of either the Plaintiff or the Defendant and appears to have been only briefly confused about the parties' names. Proof of actual confusion requires more.

          Next, as to the phone calls, in each call the caller sought assistance with services that Plaintiff does not engage in-namely, deposit refunds, property maintenance, collection of rental and lease payments, leases involving “units,” and information about Section 8 housing. Indeed, Plaintiff's employees quickly grasped that the calls were made in error due to the questions posed by the callers and they informed the callers that they had the wrong number. Defendant contends that the callers may have been trying to reach an unrelated entity, perhaps “Rampart Apartments,” and that the evidence is entirely speculative. While it is clear that each caller mistakenly called the Plaintiff, there is limited evidence that the callers intended to call the Defendant or that they conflated the Plaintiff with the Defendant.

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          Plaintiff's examples show only a “fleeting mix-up of names” by persons who are not direct customers of either party. Again, Defendant's clients are the property owners themselves and not the individual tenants who appear to have mistakenly contacted the Plaintiff. Accordingly, none of the callers appear to have been trying to do business with the Defendant itself, but perhaps with a client of the Defendant. While Plaintiff presents some relevant evidence of actual confusion, the lack of evidence of any customers swayed into doing business with Defendant affords less weight to this evidence. Furthermore, when weighed against the volume of business conducted by the parties, the weight of Plaintiff's evidence-seven phone calls- is lessened. Although precise figures for the parties have not been provided to the Court, it is not disputed that both parties operate in several states, provide complex services to sophisticated clients, and interact with a wide swath of the public. Moreover, the Defendant claims to manage over 10,000 multifamily units and over eighteen million square feet of commercial real estate space. It thus appears at this juncture that the volume of business of each party serves to lessen the weight of Plaintiff's evidence of confusion. In sum, because the Plaintiff has provided some minimal but relevant evidence of actual confusion, the Court finds that this factor leans slightly in favor of Plaintiff.

The Court also noted that, in the Fifth Circuit, more substantial evidence of actual confusion is needed where the confusion does not result in swayed purchases. Very little proof of actual confusion is required when customer purchases were actually swayed; but more proof of actual confusion is required when the confusion did not or cannot sway purchases.

The Court ultimately denied the plaintiff's motion for preliminary injunction.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.