[Grooming Dispute] Marcus Has a Successful Dog Grooming Business Called

Multiple Choice

[Grooming Dispute] Marcus has a successful dog grooming business called "Bark & Bath." He registered the business name for trademark protection. Jonah noticed how well Marcus was doing and opened his own business called "Bark & Bath II." Marcus is unhappy about Jonah's use of the name. He is also unhappy because Jonah is copying Marcus's practice of tying a bright orange bandana around each dog's neck immediately after grooming. Marcus sues Jonah for trademark infringement based upon the name and the use of the orange bandana. Jonah replies that one reason Marcus should not prevail is that he is involved primarily in the sale of dog grooming products while Marcus is involved in the grooming of dogs. Jonah claims that his use of the orange bandana is very rare because he does very little grooming. Jonah also defends on the basis that actual confusion among consumers does not exist. Marcus insists that he should prevail and notes that he is considering expanding into the product sales area.
-Regarding Jonah's claim that actual confusion among consumers did not exist, which statement is accurate?

A) Evidence of actual confusion among consumers is a necessary predicate to recovery.
B) Evidence of actual confusion among consumers is a necessary predicate to recovery only if secondary meaning cannot be established.
C) Evidence of actual confusion is necessary to recover only if secondary meaning is relied upon as a theory of recovery.
D) Evidence of actual confusion is not a prerequisite for the plaintiff to recover.
E) Evidence of actual confusion is unnecessary if the plaintiff's sales have decreased at least 10% since the use of the alleged offending product began.