Do you believe that a competitor is unreasonably using a similar or the same trademark as your business? To stop another business from infringing on a trademark, the first company to design and utilize a distinct mark in association with its products or services must provide evidence that there is a likelihood of confusion. Problems surrounding the likelihood of confusion occur in three areas: infringement litigation, inter parties proceedings, and registration. In each instance, the standard is that it is plausible, under all of the conditions, that consumers of the related products will be confused. To determine that the likelihood of confusion exists, make sure to research the following:
- Strength or weakness of the trademark: This determinant analyzes if there exists a federally registered trademark and, if so, its distinctiveness. The strongest trademarks are arbitrary and descriptive marks having nothing to do with the services or goods utilizing the mark. A weaker mark is one that is indicative or subtly suggests something about the service or goods. The weakest trademark of all is a descriptive mark.
- Proximity of the good: For related products, the danger is that the public can mistakenly assume there is a relationship between the manufacturers of the relevant products even though there exists no such association. The more likely the public is to assume there is a connection the less similarity is needed to conclude there is likelihood of confusion.
- Similarity of the marks: This is tested on three levels: meaning, sound, and sight. Each level must be examined as they are found in the marketplace. Similarities carry more weight than differences.
- Evidence of actual confusion: Proof of actual confusion to determine a likelihood of confusion does not need to exist. However, a positive indication that application of the two marks being contested has previously resulted in confusion is strong confirmation that future confusion is likely. Also, the law is not worried about the public as a whole, but instead the appropriate consuming public.
- Marketing channels utilized: If the services or products in question are sold using identical methods, such as using the same distributors, then this would support a judgment of the likelihood of confusion. Convergent marketing channels raise the possibility of likelihood of confusion.
- Types of goods and purchaser care: The courts typically recognize that the elimination of confusion is not possible. For that reason, they investigate if a typical buyer may be confused. The law also acknowledges that the consideration provided by purchasers rises with the price of an item. Because less care is given to lower priced items, a greater likelihood of confusion is possible. The price difference can help eliminate any confusion surrounding what is being purchased.
- Intent: When the alleged infringer deliberately selects a mark comparable to a competitor’s mark, most courts presume that the defendant will accomplish the purpose of deceiving the public. Although intent is not critical to proving trademark infringement, it is considered relevant.
- Likelihood of product line expansion: Because higher protection against competing products and services is afforded to trademark owners, a strong chance that either company may expand their market to compete with each other weighs heavily toward concluding trademark infringement.
Determining trademark infringement does not require proof of actual confusion. Because evidence of this sort is compelling in an infringement case, many businesses conduct public surveys to determine actual confusion. Any other circumstances that affect the likelihood of confusion are also regarded by federal circuit courts in legal proceedings. The focus of the investigation is if the public is likely to be confused. However, the ultimate goal is to protect consumers, not the trademarks. That means that even if the marks being examined are similar, but there is no actual likelihood that consumers will be confused, then there is no harm.
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