Likelihood of Confusion

Likelihood of Confusion

A trademark identifies the source of goods, whether they are sneakers (Nike), soda (Coke), soap (Dove), hamburgers (McDonald’s) or cameras (Nikon). A service mark identifies the source of the services: “You’re in Good Hands” (Allstate Insurance) or “Let your fingers do the walking” (Yellow page advertising). Because very similar marks on competing goods and services can create problems for consumers, U.S. trademark law prohibits use of a trademark or service mark that is likely to cause confusion with an existing mark. This prohibition is found I 15 U.S.C. 1114.

While it may seem that the likelihood of confusion analysis is as simple as Justice Stewart’s description of pornography (“I know it when I see it”), the legal analysis is more complex. Each case has to evaluated on its merits, considering a multitude of factors. Identity of the trademarks is generally not enough, but is a strong predictor of the USPTO’s likelihood of confusion analysis