The 9th Circuit recently decided a reverse confusion case. M2 Software, Inc. v. Madacy Entertainment, No. 03-55957 (9th Cir. Aug. 31, 2005) concerned an appeal from a jury verdict of no reverse confusion. I won't bore you with the court's discussion of each of the Sleekcraft factors and a bunch of other uninteresting issues, but what I found notable was the court's rejection of the plaintiff's argument that the reverse confusion jury instruction was too narrow.
The trial court instructed the jury that reverse confusion occurs when the "consumers doing business with the [small] senior user mistakenly believe that they are dealing with the larger junior user" (emphasis mine). The plaintiff argued that "dealing with" is too narrow; that reverse confusion also occurs if the consumers believe there is an affiliation, connection, or association between the parties. But the court said that the instruction was correct.
It seems to me that this is an unjustified narrowing of the scope of a reverse confusion claim. I think most courts agree that forward confusion (i.e, the issue in plain vanilla infringement cases) encompasses more than simply erroneous beliefs that one company is the other; it covers confusion as to association, sponsorship, affiliation, etc. Why treat reverse confusion cases any differently? I can't think of a good reason to make reverse confusion a narrower type of claim. Am I missing something?
In any event, if you're representing a defendant accused of creating reverse confusion, keep this case in mind.