Confusion in Trademark Law
By Pliam Law Group, PA


"Confusingly Similar" and "Likelihood of Confusion Test"
The terms, "confusingly similar" or "likelihood of confusion" both refer to the standard required to prove infringement of a trademark. Specifically, if the relevant consuming public will likely be confused or mistaken about the source of a product or service sold using the mark in question, then likelihood of confusion exists, and the mark has been infringed. The likelihood of confusion test is also one of several examinations conducted by the U.S. Patent and Trademark Office in determining whether to approve an applicant’s trademark application. It is worth noting here that even if there is no likelihood of confusion, i.e. no trademark infringement, you may still be liable for using another company's trademark if you are blurring or tarnishing their mark under the state and/or federal dilution laws.

Kinds of confusion:
Trademark law seeks to proactively prevent consumer confusion, and thus it does not require proof of actual consumer confusion in order for infringement of another company's trademark to occur. All that is necessary is for the trademark owner to be able to prove that a hypothetical, "reasonably prudent" consumer would likely be confused by the use of the same or a similar trademark on potentially competing products. What's more, the hypothetical purchaser is not expected to make detailed, side-by-side comparisons, or to have perfect recall. Infringement is not limited to confusion of consumers as to source, but includes confusion of any kind with respect to consumers or potential consumers. Courts have even found a likelihood of confusion to exist where the public at large could be confused, even though the actual purchasers themselves are not confused (e.g. the outer packaging that gets thrown away contains a large disclaimer, but the product inside is still confusing).

In determining likelihood of confusion, courts evaluate several factors. No one factor is determinative in and of itself, and how important one factor is over another is very case specific. The factors are:

  • Whether or not the goods or services using the same mark compete with one another. Marks that are used on similar or related goods or services are more likely to confuse consumers as to the source of those goods or services. Even where the plaintiff's products are not exactly similar, the court may in some cases consider how likely the plaintiff is in the future to sell similar products.
  • Whether or not the goods or services are so closely related that they are being marketed through the same stores or channels of distribution.
  • Whether or not the alleged infringer intended to trick consumers in order to "cash in" on the plaintiff's business good will.
  • Whether the marks are similar in appearance, phonetic sound, or meaning.
  • How careful the consumer is likely to be prior to purchasing. The more sophisticated the consumer (e.g. business owners versus children), or the more expensive the product, then the more discriminating the consumer is expected to be, and the less likely confusion will be attributed to them).
  • Whether or not the companies are accessing overlapping customer bases. If the companies both sell largely to senior citizens, to teachers, or to home-based business owners, there is more likely to be consumer confusion.
  • The legal strength of each of the marks. The greater the public recognition of a mark as a source identifier, the more likely that similar uses will be confusing.
  • Whether there has been any actual confusion. If so, this is not conclusive evidence of likelihood of confusion, but must be weighed together with the other factors.

Purpose of the confusion standard:
Trademark law frequently refers to the confusion of consumers or the probable confusion of consumers. The reason for this is that trademark law is not as much about protecting business interests as it is to protect consumers. By providing a business with the incentive increased profits by the grant of exclusive rights in a mark, and imposing a duty upon that owner to stop others from using that same mark on competing products, trademark law gives consumers some amount of control over the quality of products they buy. If one brand pleased the customer more than another, that customer can easily find the brand they liked without having to read ingredient labels or scrutinize packaging, materials and workmanship. This saves the consumer time, and allows him or her to make informed purchase decisions. For this reason, the standard of when a trademark right is being infringed has entirely to do with whether or not a consumer is going to be confused, and thus deprived of making informed purchasing decisions.

Obligation to police your mark
It is because of the focus on consumer protection that businesses are not allowed to ignore infringing uses of their mark. Since a trademark is supposed to assure a consumer that they are buying from a single source, companies who tolerate infringing uses of their mark risk losing all their rights in the mark if a third party challenger claims the company abandoned their mark by not enforcing it. Thus, companies cannot pick and choose against whom they are going to enforce their mark.


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