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As noted, the second step in proving infringement is showing that the junior user infringed the senior user's protected tradename. The senior user must prove that the junior user's use of a similar or identical tradename is likely to confuse, cause mistake, or deceive an "appreciable number" of reasonable customers. McCarthy, supra, at § 23:1.

McCarthy notes that "Traditionally, the law has classified likelihood of confusion as an issue of fact." Id. at § § 23:22 (footnote omitted), 32:37 (footnote omitted). However, some courts view this ultimate question as a legal issue and others view it as a mixed question of law and fact. [FN10] See generally Comment, Appellate Review of Lanham Act Violations: Is Likelihood of Confusion a Question of Law or Fact? 38 Sw.L.J. 743 (1984); Comment, Likelihood of Confusion Under the Lanham Act: A Question of Fact, a Question of Law, or Both?, 73 Ky.L.J. 235 (1984-85); McCarthy, supra, at § 23:22. Accordingly, the scope and manner of appellate review differs. [FN11]

FN10. How the issue is categorized affects appellate review of tradename infringement cases. Appellate courts in those jurisdictions considering likelihood of confusion a legal issue enjoy greater latitude reviewing appeals based on this issue than those considering it factual. Courts in those jurisdictions might also more readily grant summary judgment.

FN11. In this case, the district court concluded that the issue was legal, apparently basing its conclusion on a 1975 Ninth Circuit case. However, in a more recent case, Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352 (9th Cir.1985), the Ninth Circuit changed its position; it now views likelihood of confusion as a factual issue. ("For the sake of accuracy, uniformity, and consistency with the predominant view in other circuits, we will hereafter review findings of likelihood of confusion under the clearly erroneous standard.") Id. at 1356 (footnote omitted).