15 U.S.C. § 1125(a)

Elements

1. Use in commerce connected with goods or services

   (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

   VersaTop rejects importing registration/affixation requirements into infringing advertising use. Current territorial limit: Abitron (2023) confines §1125(a)(1) to domestic infringing use in commerce; U.S. consumer confusion alone does not supply domestic conduct. Official update is recorded in NOTES, not silently attributed to the 2019 case.

2. Enforceable source-identifying mark or trade dress

   any word, term, name, symbol, or device, or any combination thereof

   Protectability is doctrinal; ownership/enforceable licensing rights, priority, distinctiveness and territorial scope must be established. SportFuel states the trademark species test, not a universal requirement for every subsection (a) theory.

3. Likely consumer confusion about source or sponsorship

   (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person,

   VersaTop is a Federal Circuit decision applying Ninth Circuit law. The cited Sleekcraft factors are flexible, not a nationwide arithmetic formula. Actual confusion is relevant evidence but not mandatory proof of likely confusion. Remedies may require evidence beyond liability.

4. Misleading affiliation approval or sponsorship

   (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person,

   Require a qualifying designation or representation likely to mislead about affiliation, connection, origin, sponsorship or approval. False endorsement may concern a persona rather than a plaintiff-owned registered mark. Dastar limits origin-of-goods theory to producers of tangible goods, not authorship of uncopyrighted ideas; copyright cannot be recreated through a false-origin label.

5. Claimant proves nonfunctionality

   (3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.

   Nonfunctionality prevents permanent trademark monopoly on useful features. Bodum’s full functionality paragraph includes utilitarian and competitive-necessity tests; do not confuse usefulness of the underlying product with necessity of the particular claimed design.

6. Entitlement to sue and protected commercial interest

   shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

   Kroma EU illustrates enforcement rights reserved to the licensor; mere economic interest is insufficient in that contractual setting. Article III injury and statutory cause-of-action entitlement are distinct. Lexmark’s specific commercial-injury test is set out separately for advertising.

7. Commercial advertising or promotion

   (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

   Commercial speech disseminated to the relevant purchasing audience to influence buying. A false statement in any private dispute or investor communication is not automatically advertising. Genus’s old circuit formulation included competition; do not import that as a universal bar after Lexmark or later circuit decisions. Advertising/promotion remains an independent statutory requirement.

8. False or misleading factual representation

   any false designation of origin, false or misleading description of fact, or false or misleading representation of fact

   The quoted Ninth Circuit test, reproduced in Genus, identifies deception, materiality, commerce and causal injury distinctly. Factual claims are assessed in context; nonverifiable puffery generally cannot be proven false.

9. Judicial actual-deception or tendency-to-deceive requirement

   (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

   Louisiana-Pacific applies a presumption for literal falsity but demands audience evidence for a misleading statement; dissemination or intent to persuade alone does not prove deception. Injunction versus damages posture affects proof of injury and relief.

10. Judicial materiality requirement for purchasing decisions

    (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

    Judicial element specified in the five-part Genus/Wells Fargo test under false-fact: the falsehood must matter to purchasing. Literal falsity does not by itself remove materiality from the claim. This is separate from proof that a statement is deceptive.

11. Judicial zone-of-interests limit to commercial injury

    shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

    Lexmark’s zone-of-interests inquiry limits the statutory cause of action. A business suing only as a disappointed purchaser is like an ordinary consumer; commercial loss must fit the protected interest.

12. Judicial proximate-causation requirement

    shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

    Direct injury is not synonymous with direct competition. Merely derivative landlord/supplier losses normally fail; Lexmark discusses the particular close causal linkage alleged by Static Control, not universal recovery for every upstream supplier.

13. Good-faith descriptive use other than as a mark

    any word, term, name, symbol, or device, or any combination thereof

    This defense does not require defendant to prove absence of all confusion. Nominative use and expressive-use analysis are separate and jurisdiction-sensitive. Jack Daniel’s (2023) rejects the special Rogers threshold when the challenged designation is used as a mark for defendant’s own goods; parody may still affect confusion.

14. Remedy-specific proof

    shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

    Romag (2020): willfulness is not an absolute prerequisite to profits for §1125(a), though mental state remains important in equity. Do not transplant §1125(c) famous-mark/dilution requirements or §1125(d) cybersquatting into subsection (a).

15. Statutory person including state entities and officials

    (2) As used in this subsection, the term “any person” includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.

    Subsection (a)(2) expressly includes states, instrumentalities and official-capacity employees. Statutory inclusion does not itself overcome sovereign immunity; apply state-immunity separately.

16. Judicial domestic infringing-use limit

    uses in commerce

    Judicial territorial construction of the statutory use-in-commerce hook, shared across these (a)(1) claims. Domestic consumer confusion alone does not replace domestic infringing conduct. The Court did not comprehensively define every domestic-use scenario; the particular uses must be identified.

17. State sovereign immunity unless a valid route permits suit

    (2) As used in this subsection, the term “any person” includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.

    Judicial constitutional limit, not a statutory exemption from (a)(2). Do not equate every local government or official with an immune state, or assume statutory coverage alone authorizes the requested remedy. College Savings Bank concerned misrepresentations of the state's own product; do not turn its fact-specific abrogation reasoning into a complete rule for all intellectual-property suits.