Procesos y Procedimientos en la ESE En la ESE local Hospital de Turbana Bolívar se viven procesos y procedimientos conforme a la ley y, por eso, lo siguiente

It is fairly well established by case law that “[p]roof of an intent to

confuse the public is not necessary to a finding of a likelihood of

confusion,” but “[i]f a mark was adopted with the intent to confuse the

public, that alone may be sufficient to justify an inference of a likelihood

of confusion.”

_{In consequence, if something about a defendant’s behavior}

and the Act requires only a likelihood of confusion as to source.” Id.; see also Scarves by Vera, Inc. v. Todo Imports Ltd., 544 F.2d 1167, 1175 (2d Cir. 1976) (holding that “‘a showing of actual confusion is not necessary and in fact is very difficult to demonstrate’ with reliable proof”) (quoting W.E. Bassett Co. v. Revlon, Inc., 435 F.2d 656, 662 (2d Cir. 1970)); Am. Home Prods. Corp. v. Chattem, Inc., No. 84 Civ. 3671, 1986 WL 6167 (S.D.N.Y. May 27, 1986).

158. See, e.g.,FED.R.EVID.201.

159. See, e.g.,A & H Sportswear Inc. v. Victoria’s Secret Stores, Inc., 166 F.3d 197, 199 (3d Cir. 1999); Versa Prods. Co. v. Bifold Co. (Mfg.), 50 F.3d 189, 208 (3d Cir. 1995).

160. Geoffrey, Inc. v. Stratton, 16 U.S.P.Q.2d 1691, 1696 (C.D. Cal. 1990). 161. Elvis Presley Enter., Inc. v. Capece, 141 F.3d 188, 203 (5th Cir. 1998).

strikes a judge as evidencing bad intent, likelihood of confusion can be

sustainably inferred regardless of lack of similarity in the disputed marks

or underlying goods or services.

A paradigmatic indicator of bad intentions is intentional copying.

Acts of intentional trademark copying fall along a continuum, and at the

scurrilously evil end is counterfeiting—the exact duplication of a mark

to fool customers about the nature or origin of a product or service. At

the other extremity of the continuum, the “lawful and justifiable behavior”

side, is copying or colorable imitation of only descriptive marks, or

aspects of descriptive marks, because doing so seems necessary to

communicate attributes of the product or service itself to potential

customers. Consider this tart example: The dominant brand of bottled

lemonade may have a fanciful picture of a ripe yellow lemon on its label

that it has registered and advertised as a trademark. A competitor may

also choose to put a picture of a lemon on its retail container, not so that

customers confuse the two products or sources, but to communicate to

consumers the fact that inside is a citrus juice beverage. The lemon

image is thus legitimately used to convey product attributes.

In the middle of the intentional copying continuum are trademark and

packaging similarities in goods that deliberately market themselves as

lower priced, comparable alternatives to brand name products. Many

successful “national” producers hate this sort of “off brand” or “store

brand” competition and will tenaciously work to increase barriers to

entry to slow or incapacitate any entity that attempts to compete with

them. As a result, mark holders of this ilk will bring trademark suits if

there is a reasonable possibility they can prevail and thereby hinder a

competitor. Meanwhile, the manufacturers of cheaper, private label

alternatives seek to increase their sales and may prefer to do this without

incurring advertising expenses by packaging their goods in ways that

evoke brand name products and selling them in the same venues, and

even from the same shelves where possible. These competing desires

are clearly in direct conflict and inexorably lead to trademark litigation,

the result of which may be difficult to predict. Some courts have

decided that marketing lower priced comparable products in packaging

that evocates national brands is legitimate, lawful competition,

_while

162. See, e.g., Conopco, Inc. v. May Dep’t Stores Co., 46 F.3d 1556, 1564 (Fed. Cir. 1994); see also Andrew Corydon Finch, Comment, When Imitation Is the Sincerest Form of Flattery: Private Label Products and the Role of Intention in Determining Trade Dress Infringement, 63 U.CHI.L.REV. 1243, 1275–76 (1996).

other courts have deemed it illegitimate, actionable free riding.

While it is easy to see why reasonable minds might disagree on how

“off brand” behavior ought to be characterized, application of “likelihood of

confusion” analysis in this type of trademark dispute is apt to be

convoluted and unsatisfactory to all concerned. Whether trademark law

allows a store brand of shampoo, with its own trademark, to adopt a

formula, color, scent, and bottle style and shape similar to those of a

highly advertised and correspondingly more expensive national brand

may be a confusing query. However, any question about whether consumers

can tell the difference between the two can usually be straightforwardly

answered as follows: Of course they can. Enjoining a producer from

calling a fragrant green shampoo in an ovoid bottle “Herbs of

Reference,” may seem like a fair and appropriate response to a plea for

relief from the mark holder that makes and markets the eerily similar

“Herbal Essence,” but premising the injunction on probable likelihood

of consumer confusion is preposterous, as label and price disparities will

clearly signal the differences between the goods and sources to the vast

majority of consumers. Yet, a likelihood of confusion finding is what

trademark law requires to support an infringement holding.