780
Stevens, J., concurring in judgment
embedded reality." 10 The United States Trade Association Trademark Review Commission noted this transformation with approval: "Section 43(a) is an enigma, but a very popular one. Narrowly drawn and intended to reach false designations or representations as to the geographical origin of products, the section has been widely interpreted to create, in essence, a federal law of unfair competition. . . . It has definitely eliminated a gap in unfair competition law, and its vitality is showing no signs of age." 11
Today, it is less significant whether the infringement falls under "false designation of origin" or "false description or representation" 12 because in either case § 43(a) may be invoked. The federal courts are in agreement that § 43(a) creates a federal cause of action for trademark and trade dress infringement claims. 1 J. Gilson, Trademark Protection and Practice § 2.13, p. 2-178 (1991). They are also in agreement that the test for liability is likelihood of confusion: "[U]nder the Lanham Act [§ 43(a)], the ultimate test is whether the public is likely to be deceived or confused by the similarity of the marks. . . . Whether we call the violation infringement, unfair competition or false designation of origin, the test is identical—is there a 'likelihood of confusion?' " New West Corp. v. NYM Co. of California, Inc., 595 F. 2d 1194, 1201 (CA9 1979) (footnote omitted). And the Circuits are in
43(a) to situations it was not intended to cover and have used it in ways that it was not designed to function").
10 2 McCarthy § 27:3, p. 345.
11 The United States Trademark Association Trademark Review Commission Report and Recommendations to USTA President and Board of Directors, 77 Trademark Rep. 375, 426 (1987).
12 Indeed, in count one of the complaint, respondent alleged that petitioner "is continuing to affix, apply, or use in connection with its restaurants, goods and services a false designation o[f] origin, or a false description and representation, tending to falsely describe or represent the same," and that petitioner "has falsely designated the origin of its restaurants, goods and services and has falsely described and represented the same . . . ." App. 44-45; see Tr. of Oral Arg. 37.
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