Trademark protection is about protecting the brand that you’ve work so hard to build. But at the center of a determination as to whether trademark infringement has occurred or is likely to occur is the likelihood of consumer confusion. In short, consumer confusion exists when the marks in question and their goods or services are so similar that a consumer may think that the goods and services come from the same source.

How is likelihood of consumer confusion assessed?

The consumer confusion test is a multi-factor analysis that must be undertaken when the issues arises, whether that be during the initial trademark application process or pending infringement litigation. Here are some of those factors that must be taken into consideration:

• Similarity: The first step is to look at the similarities between the two marks. Remember, they don’t have to be identical for infringement to have occurred. They just have to be so similar as to cause a likelihood of consumer confusion. Therefore, you’ll want to look at how the marks look and sound, as well as the commercial impression that they give.
• Relatedness: Another factor that you need to take into account is the similarities of the goods and services behind the marks in question. The more similar they are, the more likely that infringement will be found. If they are in completely different markets, though, then the likelihood of confusion probably diminished. Think Dela faucets and Delta airlines.
• Prior registration searches: Before you’re allowed to register a trademark, you the USPTO will conduct a search for similar marks. So, this analysis may be undertaken early on in your trademark endeavor, but those search results may also be evidence of similar marks and the likelihood of consumer confusion at a later time.

Competently navigate your trademark issues

We know that there’s a lot on the line when dealing with your trademarks. That’s why it’s imperative that you know how to confidently navigate these processes. If you’d like to learn more about how to do that, then it’s probably in your best interests to continue to research this area of the law.