Today’s consumers can spot a copy. Trademark law, however, is still largely built around a different question: are consumers confused?
That tension sits at the center of New Balance Athletics, Inc. v. Decathlon America LLC. In its recently filed complaint, New Balance asserts claims for trademark infringement and false designation of origin, both of which generally require a likelihood of consumer confusion, as well as dilution of its allegedly famous “N” mark, which does not.
The case raises a broader question that extends beyond the parties involved: If consumers increasingly recognize copying without being confused, is confusion still the right inquiry?
New Balance’s complaint reads like a textbook dilution pleading. It details decades of use of the iconic “N” mark, extensive sales and advertising, multiple incontestable federal registrations, and a prior federal court decision recognizing the mark as famous. By the time the complaint turns to Decathlon’s conduct, it has laid a substantial foundation for both its infringement and dilution claims.
Against that backdrop, New Balance alleges that Decathlon’s KIPRUN running line, featuring a stylized “K” on the sides of its shoes, frequently uses a mirror-image version of the design that consumers perceive as an “N.” New Balance further alleges that Decathlon’s use of the design across its products and marketing creates initial-interest, point-of-sale and post-sale confusion in a market heavily influenced by athlete endorsements, race coverage and social media.
Perhaps the most interesting aspect of the complaint is what many of the social media commentaries do not show. Many commenters did not appear confused about source. Instead, they characterized the products as “rip-offs,” “knock-offs” or imitations of New Balance. The comments may support New Balance’s allegations, but they also highlight an increasingly common phenomenon: Consumers can perceive copying as unfair even when they understand that the products come from different companies.
In other words, the complaint raises a question larger than whether Decathlon’s conduct is actionable: What legal causes of action fit when consumers aren’t confused, but still view copying as unfair?
New Balance likely has legal tools that many brands do not. If its allegations are proven, it can pursue not only infringement and false designation of origin claims but also dilution claims based on the asserted fame of its marks. Decades of use, substantial investment and prior judicial recognition of fame place New Balance in a strong position to challenge alleged free riding on its brand equity.
But what happens when a younger brand faces similar copying?
Many companies encounter look-alike products, imitation branding and copycat competition long before they develop the level of fame necessary to support a dilution claim. Yet traditional trademark doctrines often provide limited relief in those circumstances.
- Trademark infringement and false designation of origin require confusion. Modern consumers can often recognize imitation, copying and brand misappropriation while fully understanding that the products originate from different companies.
- Trade dress protection remains difficult and expensive to obtain. Successful claims generally require substantial evidence of distinctiveness, non-functionality and consumer recognition. For emerging brands, those hurdles can be difficult to overcome until the very goodwill they seek to protect has already been established.
- State unfair competition law frequently follows the same path. Many unfair competition claims remain tied to deception and consumer confusion, leaving conduct perceived by consumers as unfair copying outside the reach of traditional trademark remedies.
Together, these limitations expose a growing disconnect in trademark law. Consumers increasingly recognize copying without being confused by it. Yet many trademark doctrines continue to hinge on confusion, while dilution protection remains reserved for a relatively small group of famous brands.
Trademark law does recognize a separate category of particularly egregious copying: counterfeiting. But counterfeiting claims generally require use of a mark that is identical to or substantially indistinguishable from the genuine, registered mark. Many of today’s alleged “dupes,” “look-alikes” and “knock-offs” are carefully designed to capture marketplace recognition while stopping short of outright duplication, leaving brand owners to rely on traditional infringement, trade dress or dilution theories instead.
New Balance may ultimately prevail because it can invoke both infringement and dilution theories. The more difficult question is what protection exists for brands that have neither. As consumers become more sophisticated, connected and vocal, courts and lawmakers may increasingly confront the gap between confusion and perceived unfair free riding. If consumers have evolved, perhaps the law will need to evolve as well.
The case is New Balance Athletics, Inc. v. Decathlon America LLC et al., No. 1:26-cv-14235 (D. Mass. Sept. 15, 2026). The case has been assigned to Magistrate Judge Jessica D. Hedges.
