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Vol. 8 - Issue 7
August 21, 2019


Court Addresses The “Confusion Doctrine” And It’s – You Guessed It…


The law loves doctrines.  There’s the Erie Doctrine, the Reasonable Expectations Doctrine, the Doctrine of Last Clear Chance and the list goes on and on.  As I see it, a doctrine is just a rule that had a good P.R. department, that was able to elevate it to a more important sounding “doctrine.”

Add this to this list.  I recently came across the “Confusion Doctrine.”  Really.    

“Under the well-named confusion doctrine, ‘[w]hen the qualities of obligee and obligor are united in the same person, the obligation is extinguished by exhaustion.’  La. Civ. Code Ann. art. 1903. ‘[A]n obligation is said to be extinguished by confusion when a person is placed in the position of owing the obligation to himself.’ Langley v. Police Jury of Calcasieu Parish, 201 So. 2d 300, 304 (La. App. 3d Cir. 1967) (en banc) (quotation omitted); see, e.g., Matter of Dibert, Bancroft & Ross Co., Ltd., 117 F.3d 160, 170-71 (5th Cir. 1997) (confusion arises, for example, when a ‘promissory note that is secured by [a] mortgage is acquired by its maker’ or ‘an encumbered building is acquired by the mortgagee’ (emphasis omitted)). ‘For confusion to occur the same person must acquire the full and perfect ownership of both sides of the obligation.’”  Lloyd’s Syndicate 457 v. Am. Global Mar. Inc., 346 F. Supp. 3d 908 (S.D. Tex. 2018).
So, if the “confusion doctrine” means that, when the qualities of obligee and obligor are united in the same person, the obligation is extinguished by exhaustion, how do you explain this definition provided by the North Dakota Supreme Court in City of Bismarck v. King, 2019 ND 74 (2019):  “The ‘confusion doctrine’ provides that when an arresting officer introduces the question of a drunken-driving suspect’s right to counsel by giving a Miranda warning prior to requesting a chemical test, the suspect’s subsequent refusal to take a test until an attorney is consulted may not constitute a ‘refusal to submit’ to a chemical test.’  We further explained the confusion doctrine does not apply when the officer explicitly informs the driver that the Miranda rights do not apply to the taking of a chemical test pursuant to the implied consent law.” 

But wait, it gets even more, well, you know….

There is also a Reverse Confusion Doctrine in the trademark context, where a “large junior user saturates the market with a trademark similar or identical to that of a smaller, senior user such that the public comes to assume that the senior user’s products are really the junior user’s or that the former has become somehow connected to the latter.”  Fortres Grand Corp. v. Warner Bros. Entm’t, Inc., 947 F. Supp. 2d 922 (N.D. Ind. 2013).   

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