In a crowded retail landscape – where brands are fighting for consumer attention across fashion, beauty, activewear, health/wellness, hospitality, and broader lifestyle categories – trademark disputes are an important part of brand strategy. Yet, new empirical research suggests that, despite the complexity of today’s marketplace, most trademark matters effectively turn on two deceptively simple questions: Are the marks similar and are the goods or services at play related?
That is the crux of a new article by Southern Illinois University law professor Thomas A. Reichert, which challenges the longstanding premise that trademark disputes are decided through a balancing of multiple contextual factors. After analyzing thousands of Trademark Trial and Appeal Board (“TTAB”) decisions issued between 2000 and 2025, Reichert argues that the longstanding thirteen-factor DuPont framework – formally used to assess likelihood of confusion – has collapsed into a far narrower inquiry.
For decades, U.S. courts and trademark bodies have maintained that trademark cases require a holistic balancing analysis, one that considers a range of marketplace and consumer-perception factors to evaluate likelihood of confusion. The framework stems from a 1973 TTAB decision that established thirteen separate factors intended to guide confusion determinations. But Reichert’s findings suggest that despite the longstanding emphasis on a nuanced, flexible multi-factor analysis to evaluate likelihood of confusion, outcomes in trademark proceedings may be overwhelmingly driven by the first two DuPont factors alone: similarity of the marks and relatedness of the goods or services.
Trademark Law in the Modern Market
Reichert’s findings carry particular significance for modern consumer brands, many of which increasingly differentiate themselves through aesthetics, positioning, retail environments, and broader lifestyle branding rather than through product categories alone. Brands are also readily expanding across adjacent sectors, with fashion brands routinely operating in beauty, hospitality, home goods, wellness, and lifestyle spaces, and beauty brands launching apparel, accessories, and broader consumer products.
As for modern consumers, many engage with brands as part of a broader lifestyle and identity ecosystem, with purchases across fashion, beauty, wellness, hospitality, and even food and beverage often functioning as interconnected expressions of lifestyle, taste, and identity.
The result is a marketplace in which brands compete through cross-category presence and broader lifestyle branding, even as Reichert’s findings suggest that trademark law may still place primary weight on mark similarity and product overlap. That emphasis on the first two DuPont factors creates a tension with the way modern brands operate – routinely competing through aesthetics, positioning, retail context, and overall identity – as opposed to just brand names and product category distinctions.
THE TAKEAWAY: Against that backdrop, Reichert’s findings suggest that a number of the arguments brands typically rely on in trademark disputes to defend against infringement claims – including differing retail channels or customer sophistication – may matter less than companies assume. In practical terms, if trademark bodies focus almost exclusively on similarity of the marks and of the goods/services, differences in aesthetics, target customers, positioning, or retail environments may not provide as much protection once similar marks begin appearing on overlapping products or services.
More broadly, Reichert raises the possibility that trademark law may operate through relatively rigid assumptions about similarity and product overlap when modern brands and consumers operate through fluid brand ecosystems that extend well beyond traditional product categories.
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