Likelihood of Confusion

Likelihood of Confusion (LOC) is a fundamental concept in trademark law that assesses whether a proposed mark is too similar to an existing trademark. This assessment aims to protect consumers from being misled about the source of products or services and to safeguard trademark owners' brand identities. The trademark may be a registered mark, or it may be a common law based mark.

As part of examining a trademark application, an examining attorney at the United States Patent and Trademark Office (USPTO) will search the principal register to identify live trademark registrations whose marks may be confusingly similar to the applied-for mark.  

Similarly, during trademark infringement litigation, the court may determine if there is a likelihood of confusion between the asserted trademark and the infringing mark.

A series of facts are considered when determining whether a likelihood of confusion exists, each factor having a varying weight and no one factor being determinative.

Factors For Likelihood of Confusion

1. Similarity of the Marks: This factor includes the mark's visual, auditory, and conceptual similarities, considering appearance, sound, and meaning. A strong resemblance may increase the likelihood of confusion, while significant differences can reduce it.
   

2. Similarity of Goods and Services: This factor evaluates how closely related the described goods or services are in the relevant marketplace—the more similar the goods or services, the higher the likelihood of confusion.

   
   

3. Strength of the Prior Existing Mark: This factor considers the distinctiveness and recognition of the existing mark—well-known marks may receive broader protection.

   
   

4. Evidence of Actual Confusion: This factor considers instances where a similar mark has misled consumers as to the source of corresponding goods and services—actual confusion can significantly increase the likelihood of confusion.

   
   

5. Consumer Sophistication: This factor considers the level of care expected from the average consumer of the corresponding good and service—the more discerning the consumer, the lower the likelihood of confusion.

   
   

6. Channels of Trade and Advertising: This factor considers the similarities in sales and marketing channels of the corresponding goods and services—overlapping sales and marketing channels may increase the likelihood of confusion.

   
   

7. Intent of the Applicant: This factor considers whether the applicant intended to cause confusion or to benefit from the established mark's reputation.

These factors are evaluated collectively, with the similarity of the marks and the similarity of the goods and services factors usually being the most significant.

How TCP Law Can Help

Understanding and evaluating the likelihood of confusion is critical in selecting and protecting trademarks. A trademark attorney at TCP Law can help assess thoroughly the multiple factors relevant to likelihood of confusion.

For assistance with evaluating likelihood of confusion or with any other trademark issue, contact TCP Law at info@tcplawfirm.com or 917-612-1059.