D. The district court correctly held that three evidence of actual confusion that Lamborghini presented are insufficient to prove likelihood of confusion.

This Court should affirm the district court’s summary judgment to AEV because Lamborghini only presented isolated instances of confusion, which negates likelihood of confusion. The evidence of actual confusion is the “most important factor in assessing a likelihood of confusion.” Gen. Motors, 453 F.3d at 356. In analyzing the evidence of actual confusion, courts may consider the: 1) number of products sold in relation to the number of instances of the confusion; 2) channel used in expressing the consumer’s confusion and the degree of care used by consumers in choosing the channel of communication …show more content…
Id. at 636. This Court found that six misdirected emails were legally insignificant because plaintiff’s operations from January 1997 to July 2000 showed that 3,200,000 ear thermometers were sold. Id. at 635. This Court also held that the consumers’ use of email implies that the consumers were “inattentive or careless, as opposed to being actually confused” because the consumers could have carelessly searched for “Thermascan” instead of “Thermoscan.” Id. Moreover, this Court held the lack of evidence of actual confusion from 19990 to 1998 actually shows that the “consumers have not been confused.” Id. at 636. This Court held that the absence of evidence of actual confusion for eight years, the insignificant number of …show more content…
This case bears similarities with Therma-Scan wherein this Court looked at three considerations to determine whether the evidence of actual confusion proved the likelihood of confusion. This Court examined the number of products the company sold in relation to the instances of the alleged confusion, and found that 3,200,000 ear thermometers sold made the six emails legally insignificant. Similarly, in this case, Lamborghini sold 3,245 vehicles in 2015, which amounted to $600 million. J.A. at 15-16. The big number of the sports cars sold make the three phone calls legally insignificant because the three phone calls did not affect the number of cars sold and total earnings of Lamborghini. Another similarity with Therma-Scan is the significant amount of time that elapsed during the concurrent use of the marks without any evidence of confusion. An examination of the amount of time also bears some similarities to Champions. In Therma-Scan, this Court found the absence of actual confusion for eight years, from 1990 to 1998, negates the actual confusion of consumers. In Champions, eight years also elapsed before an evidence of actual confusion was reported. In this case, there is also a considerable amount of time before any evidence of actual confusion was reported. Both trademarks were