Actual Confusion Evidence (Declarations and Misdirected Inquiries) Creates a Triable Issue on Lanham Act “Likelihood of Confusion” at Summary Judgment

Case: Associated Professional Educators of Louisiana v. EDU20/20, L.L.C.; Courtney Dumas; Miranda Britt
Court: United States Court of Appeals for the Fifth Circuit
Date: February 18, 2026 (filed February 16, 2026)
Publication status: Not designated for publication (5th Cir. R. 47.5)

I. Introduction

This appeal arose from a dispute between two Louisiana education-service entities: the plaintiff, Associated Professional Educators of Louisiana (“A+PEL”), and EDU20/20, L.L.C. (“EDU20/20”), founded by individuals including Miranda Britt while Britt was employed by A+PEL as Deputy Director.

A+PEL alleged that Britt, while still employed, performed EDU20/20 work and delivered presentations that used A+PEL’s logo and sometimes identified her EDU20/20 role—prompting audience members to assume an affiliation between the organizations. A+PEL also alleged misappropriation of trade secrets (training materials and client/member information) and asserted related Louisiana-law claims (LUTPA, fiduciary duty, conspiracy).

The district court granted defendants’ partial summary judgment motions, rejecting A+PEL’s Lanham Act claim for lack of evidence of likely confusion, rejecting DTSA/LUTSA trade secret claims, and disposing of certain Louisiana-law theories for lack of damages. After all federal claims were dismissed, it declined supplemental jurisdiction over the remaining state-law claims and dismissed them without prejudice. A+PEL appealed.

II. Summary of the Opinion

• Lanham Act: The Fifth Circuit reversed summary judgment for defendants. It held that A+PEL produced evidence (declarations and a misdirected inquiry) creating a genuine dispute of material fact on “likelihood of confusion,” and the district court improperly drew inferences in defendants’ favor regarding the cause of confusion.
• Trade secrets (DTSA/LUTSA): The Fifth Circuit affirmed summary judgment for defendants. The Mentor Teacher materials were not trade secrets because they were disclosed to participants not bound by confidentiality; the “Client List” failed because A+PEL did not identify competent record evidence establishing the list’s existence; and the Member Database failed because A+PEL did not show the information was not readily ascertainable or that secrecy conferred independent economic value (given public-record accessibility of Louisiana school district information).
• LUTPA / fiduciary-duty theories tied to logo/confidential info: The Fifth Circuit affirmed summary judgment because A+PEL failed to link alleged losses to the complained-of conduct (damages causation), including a “temporal impossibility” as to claimed losses occurring before certain logo uses.
• Supplemental jurisdiction: Because the Lanham Act claim was revived, the court vacated the dismissal of the state-law claims and remanded for further consideration.

III. Analysis

A. Precedents Cited

1. Summary judgment standards and record-citation discipline

• Century Sur. Co. v. Colgate Operating, L.L.C., 116 F.4th 345 (5th Cir. 2024): de novo review on cross-motions; each motion assessed independently; inferences drawn for the nonmovant. This framing became decisive on the Lanham Act issue, where the district court effectively resolved causation of confusion against A+PEL.
• A.A. v. Northside Indep. Sch. Dist., 951 F.3d 678 (5th Cir. 2020): clear-error review of underlying factual findings (notably referenced, though the Lanham Act likelihood-of-confusion inquiry is treated as factual).
• In re La. Crawfish Producers, 852 F.3d 456 (5th Cir. 2017) and Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298 (5th Cir. 2020) (quoting Dewan v. M-I, L.L.C., 858 F.3d 331 (5th Cir. 2017)): burden-shifting at summary judgment; when the movant does not bear trial burden, pointing out an evidentiary absence can suffice; when the movant bears the trial burden, it must establish elements “beyond peradventure.”
• Edwards v. Cont'l Cas. Co., 841 F.3d 360 (5th Cir. 2016) (quoting Forsyth v. Barr, 19 F.3d 1527 (5th Cir. 1994)): courts need not “sift through the record.” This was central to affirmance on the alleged Client List: A+PEL did not identify where, in the record, the supposed list existed.

2. Lanham Act: likelihood of confusion, context, and actual confusion evidence

• Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll. v. Smack Apparel Co., 550 F.3d 465 (5th Cir. 2008): sets the two-prong infringement framework (protectible mark + likelihood of confusion) and articulates the “digits of confusion” factors applied by the court.
• Future Proof Brands, L.L.C. v. Molson Coors Beverage Co., 982 F.3d 280 (5th Cir. 2020) and Moore v. Brown, 868 F.3d 398 (5th Cir. 2017): likelihood of confusion is a factual finding reviewed for plausibility in light of the entire record.
• Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658 (5th Cir. 2000): clarifies that “likelihood” means “probability,” not a mere possibility.
• Rex Real Est. I, L.P. v. Rex Real Est. Exch. Inc., 80 F.4th 607 (5th Cir. 2023): recognizes that actual confusion can be established by anecdotal instances or surveys. The panel used this to validate reliance on declarations plus an inbound inquiry.
• Scott Fetzer Co. v. House of Vacuums, Inc., 381 F.3d 477 (5th Cir. 2004): (i) rejects anecdotal confusion evidence when the plaintiff fails to show the defendant’s representation caused the likely confusion; and (ii) stresses that the “particular context” of the mark’s appearance matters. The panel distinguished that caution by emphasizing that, at summary judgment, the court must draw inferences for the nonmovant as to the source of confusion.
• Guzman v. Allstate Assurance Co., 18 F.4th 157 (5th Cir. 2021): self-serving declarations can defeat summary judgment if not conclusory. The panel treated the Neal and Williams declarations as sufficiently concrete (identifying the logo usage and the resulting assumption of affiliation).
• Elvis Presley Enters. v. Capece, 141 F.3d 188 (5th Cir. 1998): confirms “initial interest” confusion; confusion need not culminate in a consummated transaction.
• Am. Century Proprietary Holdings v. Am. Century Cas. Co., 295 F. App'x 630 (5th Cir. 2008) and Oreck Corp. v. U.S. Floor Sys., Inc., 803 F.2d 166 (5th Cir. 1986): misdirected inquiries (email, calls, mail) can evidence actual confusion; absence of such indicia can undermine proof. The panel relied on this line to treat the LDOE email as corroboration.

3. Trade secrets: secrecy measures, public availability, and evidentiary proof

• CAE Integrated, L.L.C. v. Moov Techs., Inc., 44 F.4th 257 (5th Cir. 2022) and Comput. Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396 (5th Cir. 2000): to prevail under DTSA/LUTSA, a plaintiff must prove the existence of a trade secret, among other elements.
• Sheets v. Yamaha Motor Corps., U.S.A., 849 F.2d 179 (5th Cir. 1988): disclosure to persons under no confidentiality obligation destroys trade secret status. This controlled the outcome for the Mentor Teacher materials.
• Zoecon Industries, a Div. of Zoecon Corp. v. American Stockman Tag Co., 713 F.2d 1174 (5th Cir. 1983) and Johnston v. Vincent, 359 So. 3d 896 (La. 2023): customer lists can be trade secrets when they include “other information” compiled at considerable expense. The panel distinguished these cases on the theory that Louisiana school-district information is obtainable through public records, and A+PEL did not prove its “preferred emails” were non-public.
• Simmons v. Willcox, 911 F.2d 1077 (5th Cir. 1990): propositions must be supported by record evidence, not speculation. Used to reject A+PEL’s “may not be publicly available” assertion.
• Praeses, L.L.C. v. Bell, 54,601 (La. App. 2 Cir. 6/29/22), 343 So. 3d 933: trade secret protection is weakened when clients/contracts are matters of public record (used by analogy to the public-entity context).
• The court also noted persuasive out-of-circuit authority in footnotes—Life Spine, Inc. v. Aegis Spine, Inc., 8 F.4th 531 (7th Cir. 2021) and Ahern Rentals, Inc. v. EquipmentShare.com, Inc., 59 F.4th 948 (8th Cir. 2023)—to underscore that secrecy can be maintained through confidentiality agreements and NDAs, which were absent as to A+PEL’s program participants.

4. LUTPA and fiduciary duty: damages as an element

• Johnson Constr. Co. v. Shaffer, 46,999 (La. App. 2 Cir. 2/29/12), 87 So. 3d 203: LUTPA requires an “ascertainable loss”; damages must be proven.
• Brockman v. Salt Lake Farm P'ship, 33-938 (La. App. 2 Cir. 10/4/00), 768 So. 2d 836: intentional breach of fiduciary duty requires proof of damages caused by the breach.

5. Supplemental jurisdiction

• Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595 (5th Cir. 2009): abuse-of-discretion standard for declining supplemental jurisdiction. Once the federal Lanham Act claim was reinstated, the premise for the district court’s declination changed, warranting vacatur and remand.

B. Legal Reasoning

1. Why the Lanham Act claim survived summary judgment

The panel’s reversal is less about announcing a new “digits of confusion” test and more about enforcing summary-judgment discipline in applying that test:

• Anecdotal actual confusion is competent evidence (Rex Real Est. I, L.P. v. Rex Real Est. Exch. Inc.) and here consisted of two declarations (Neal and Williams) stating they assumed an affiliation/endorsement because A+PEL’s logo appeared in Britt’s EDU20/20 presentations.
• The district court drew an inference against the nonmovant by attributing confusion to Britt’s known A+PEL employment rather than the logo’s use—an inference the panel held should have been drawn in A+PEL’s favor at summary judgment (Century Sur. Co. v. Colgate Operating, L.L.C.).
• Misdirected inquiries bolster the confusion showing: the LDOE email sent to Britt’s A+PEL address and redirected to EDU20/20 constituted indicia of actual confusion under Oreck Corp. v. U.S. Floor Sys., Inc., and aligns with initial-interest confusion principles in Elvis Presley Enters. v. Capece.

Taken together, the panel held a reasonable factfinder could conclude there was a probability of confusion, so defendants were not entitled to judgment as a matter of law.

2. Why the trade secret claims failed (majority approach)

• Mentor Teacher materials: Even if costly to compile, A+PEL did not take “reasonable measures” to keep them secret as to participants; disclosure to persons under no confidentiality obligation defeats trade secret status (Sheets v. Yamaha Motor Corps., U.S.A.).
• Client List: The failure was evidentiary and procedural: A+PEL did not identify competent summary-judgment evidence establishing the existence of the claimed list, and did not address defendants’ argument that what was produced was not the claimed contact-rich list. Under Edwards v. Cont'l Cas. Co., courts need not comb the record to find support.
• Member Database: The majority concluded A+PEL did not show the contents were not “readily ascertainable” nor that secrecy yielded independent economic value, emphasizing that educator contact and funding-related information can be obtainable through public records, and A+PEL’s “preferred email” non-publicity claim lacked proof (Simmons v. Willcox).

3. The concurrence’s alternative trade-secret framing

Judge Oldham concurred in the judgment but argued the client list and member database could qualify as trade secrets under Zoecon Industries, a Div. of Zoecon Corp. v. American Stockman Tag Co. and Johnston v. Vincent. He would affirm because A+PEL failed on a different element: no evidence defendants used or disclosed those lists/databases (i.e., no misappropriation), even if Britt accessed data.

This split matters doctrinally: the majority’s approach narrows trade secret status in public-entity contexts (public records), whereas the concurrence would more readily recognize trade secret status but require concrete proof of “use” beyond access.

4. Why LUTPA and fiduciary-duty claims (logo/confidential-info theories) failed—yet state claims were remanded

The panel affirmed dismissal of LUTPA and fiduciary-duty theories to the extent they were premised on the logo and confidential information because A+PEL did not connect any claimed “ascertainable losses” to that conduct. The court treated causation of damages as essential under Johnson Constr. Co. v. Shaffer and Brockman v. Salt Lake Farm P'ship, and emphasized “temporal impossibility” where alleged losses predated the complained-of logo use.

Separately, because the Lanham Act claim was revived, the court vacated the district court’s discretionary dismissal (declination of supplemental jurisdiction) of other state-law claims and remanded for further proceedings.

C. Impact

• Trademark cases at summary judgment: The decision reinforces that district courts should not “explain away” confusion evidence by selecting among competing inferences about causation. Where a mark is actually used and record evidence shows third-party assumptions of affiliation, the question often must go to a factfinder.
• Practical proof of actual confusion: The opinion elevates the litigation value of (i) targeted declarants who can tie their confusion to the mark’s appearance and (ii) documentary “mismatched routing” evidence (emails/inquiries sent to the wrong entity) as corroboration.
• Trade secrets in public-entity markets: The majority’s reasoning suggests heightened skepticism toward claims that customer/member contact information is secret when the relevant counterparties are public bodies and information is obtainable under public records statutes—unless the plaintiff proves non-public elements with specificity and record support.
• State-law claims tethered to alleged misuse: LUTPA and fiduciary-duty claims remain damages-driven; plaintiffs must build a record that links the challenged act (e.g., logo use) to a quantifiable or at least evidenced loss, not merely suspicious conduct.
• Procedural takeaway: Reviving a single federal claim can reopen the federal forum for related state claims previously dismissed without prejudice for lack of supplemental jurisdiction—highlighting the strategic importance of preserving at least one federal hook.

IV. Complex Concepts Simplified

• “Likelihood of confusion” (Lanham Act): Whether ordinary customers would probably think the defendant’s goods/services are connected to, sponsored by, or affiliated with the plaintiff.
• “Digits of confusion”: A set of non-exclusive factors (e.g., similarity of marks/services, purchasers, advertising channels, intent, and actual confusion) used to decide likelihood of confusion.
• “Actual confusion” evidence: Real-world proof that someone was in fact confused—through declarations, surveys, or misdirected communications. It is not required in every case, but it is powerful.
• “Initial interest confusion”: Confusion that captures a potential customer’s attention at the outset, even if the confusion clears up before any purchase/contract occurs.
• Trade secret: Information that (i) is kept reasonably secret, (ii) is not generally known or readily discoverable, and (iii) provides economic value because it is secret.
• Summary judgment: A pretrial ruling granted only when no genuine dispute of material fact exists. Courts must draw reasonable inferences for the nonmoving party.
• Supplemental jurisdiction: A federal court’s discretion to hear state-law claims linked to federal claims; when the federal claims disappear, courts often dismiss state claims without prejudice to refiling in state court.

V. Conclusion

The Fifth Circuit’s opinion chiefly underscores a process-oriented but outcome-determinative point: when a plaintiff produces concrete evidence of actual confusion—especially declarations identifying a mark’s presence as the reason for an assumed affiliation—summary judgment on Lanham Act likelihood of confusion is often inappropriate, and a district court may not resolve competing inferences against the nonmovant.

At the same time, the decision illustrates the rigor of trade secret litigation at summary judgment: secrecy measures must extend to those who receive the information (not just employees), asserted lists must be proven to exist in the record, and “non-public” status cannot rest on conjecture. Finally, by reviving the federal claim, the court reopened the path for state-law claims to proceed in federal court on remand.