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What is "likelihood of confusion" in trademarks?



Likelihood of confusion is a crucial consideration in trademark law, determining whether a proposed mark is too similar to an existing trademark. This principle protects consumers from being misled about the origins of products or services and safeguards the brand identity of trademark owners.


During the examination of a trademark application, the USPTO will determine the likelihood of confusion between the applied for mark and any existing registrations with priority. Similarly, during the litigation of a trademark infringement complaint, the Court will determine if there is a likelihood of confusion between the marks in question to assess whether there is trademark infringement. These factors may include:


  • The similarity of the marks in question, including assessment of their visual, auditory, and conceptual similarities. This factor considers the marks' similarity in appearance, sound, and meaning. An overall impression of similarity increases the likelihood of confusion. However, minor differences between the marks may be enough to differentiate the mark and reduce the likelihood of confusion.

  • The similarity of the goods and services described for the marks in question, including how closely related the described goods or services are. This factor considers whether the goods or services offered under the marks are sufficiently related to cause confusion. The greater the similarity of the goods or servers of the marks, the greater the likelihood of confusion. 

  • The strength of a prior existing mark, including the distinctiveness and recognition of the existing mark. Well-known marks enjoy broader protection.

  • Evidence of actual confusion, including instances where a confusingly similar mark may have misled consumers. This factor considers real-world cases where consumers have been confused between the two marks. Evidence of actual confusion between marks increases the likelihood of confusion.

  • The sophistication of the consumer, including the level of care expected from the average consumer. This factor considers that higher-end products might see more discerning consumers, reducing the likelihood of confusion.

  • The channels of trade and advertising associated with the marks, including the similarities between their sales and marketing channels. This factor considers how and where the products or services are sold and advertised. Overlapping channels increase the likelihood of confusion.

  • The applicant's intent, including whether the applicant intended to cause confusion between the marks. This factor considers whether the applicant intended to benefit from the established mark's reputation.


These factors are meant to be evaluated collectively. However, the similarity of the marks and goods/services usually carries the greatest weight.


Need to determine the likelihood of confusion between marks?

Understanding likelihood of confusion is crucial for businesses in trademark selection and protection strategies. It requires a comprehensive evaluation of various factors, balancing consumer protection with fair competition.


To discuss if there may be a likelihood of confusion between marks, contact TCP Law by email at info@tcplawfirm.com or John Laurence by phone at 917-612-1059.

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John Laurence TCP Law, Trademark Patent Copyright Lawyer

TCP Law focuses on helping individuals and businesses develop, secure, and enforce their intellectual property rights.

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