Likelihood of Confusion

Likelihood of confusion is a key concept in trademark law that refers to the possibility that consumers will be confused about the source or origin of goods or services due to the similarity between two trademarks. In other words, it is the likelihood that consumers will mistake one trademark for another or believe that there is a connection between the two. Trademark law aims to protect consumers from confusion and ensure that trademarks serve as reliable indicators of the source or quality of goods or services. When assessing the likelihood of confusion, courts consider various factors to determine whether a trademark infringement has occurred.

Courts typically do not require actual confusion to establish likelihood of confusion. It is enough to demonstrate that confusion is likely to occur among consumers in the relevant marketplace. The standard for likelihood of confusion varies slightly in different jurisdictions, but the general principle is to assess the impact of the marks on the ordinary consumer exercising reasonable care and attention. If a court finds that there is a likelihood of confusion, it may conclude that a trademark infringement has occurred. This can result in legal remedies such as injunctive relief, damages, or the requirement to change or cease using the infringing trademark.

Likelihood of Confusion Tests

Determining the likelihood of confusion is a complex analysis that depends on the specific facts and circumstances of each case. It often requires a careful examination of the competing trademarks, the industry, the target consumers, and other relevant factors. 

The Polaroid Factors: The U.S. Court of Appeals for the Second Circuit, for example, uses the Polaroid factors to assess the likelihood of confusion between two trademarks. These factors were established in Polaroid Corp. v. Polarad Elecs. Corp. in 1961. The factors are as follows … 

(1) Similarity of the Marks: Courts consider the overall similarity between the trademarks, including their appearance, sound, meaning, and commercial impression. If the marks are similar, it increases the likelihood of confusion.

(2) Strength of the Plaintiff’s Mark: The strength of a trademark refers to its distinctiveness and the level of recognition it has among consumers. Strong marks, such as coined or fanciful marks, are entitled to greater protection than weak marks, such as descriptive or generic terms.

(3) Proximity of the Goods or Services: If the goods or services offered under the trademarks are closely related or in the same industry, the likelihood of confusion is higher. The closer the goods or services, the more likely consumers may be confused about their source.

(4) Similarity of Trade Channels: Courts consider the channels of trade through which the goods or services are marketed and sold. If the trademarks are used in similar distribution channels, such as the same retail outlets or online platforms, confusion is more likely.

(5) Sophistication of the Consumers: The level of attention or sophistication of the consumers who are likely to purchase the goods or services is taken into account. If consumers are highly attentive and knowledgeable, they are less likely to be confused by similar trademarks.

(6) Evidence of Actual Confusion: Evidence of actual confusion among consumers is a strong indicator of likelihood of confusion. This can be in the form of consumer surveys, customer complaints, or other reliable evidence demonstrating confusion in the marketplace.

(7) Defendant’s Intent: Courts may consider the defendant’s intent in adopting a similar trademark. If there is evidence that the defendant intentionally sought to create confusion or trade on the plaintiff’s reputation, it weighs in favor of finding likelihood of confusion.

The Sleekcraft Factors: Established in the AMF Inc. v. Sleekcraft Boats case in 1979 and applied by courts in the Ninth Circuit, the Sleekcraft factors consist of …

(1) Strength of the Plaintiff’s Mark: The degree of distinctiveness and recognition of the plaintiff’s mark in the marketplace.

(2) Proximity of the Goods or Services: The relatedness or similarity between the goods or services offered under the plaintiff’s mark and the defendant’s mark.

(3) Similarity of the Marks: The overall similarity between the plaintiff’s mark and the defendant’s mark in terms of appearance, sound, meaning, and commercial impression.

(4) Evidence of Actual Confusion: Instances of actual confusion among consumers, such as customer complaints, survey results, or other reliable evidence.

(5) Marketing Channels Used: The similarity or overlap in the channels of trade, distribution channels, or advertising mediums used by the parties.

(6) Type of Goods and Degree of Care Exercised by Consumers: The nature of the goods or services involved and the level of attention or care that consumers are likely to exercise when purchasing them.

(7) Defendant’s Intent: Any evidence of the defendant’s intent to deceive or confuse consumers or to benefit from the reputation or goodwill associated with the plaintiff’s mark.

(8) Likelihood of Expansion: The potential for the plaintiff to expand the use of its mark to cover goods or services that are similar to those offered by the defendant.

These factors are not exhaustive, and their application may vary depending on the specific circumstances of each case. Courts analyze and weigh these factors to determine the likelihood of confusion between two trademarks and whether infringement has occurred.