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Trademark law: Learning about the term, likelihood of confusion

As intellectual property attorneys intent on helping our clients as effectively as possible, we may sometimes forget that certain terminology might sound like gibberish to the other people. The phrase, "likelihood of confusion" is one such term. It is used in trademark law as a means to prove infringement. In this post, we will talk about likelihood of confusion so that you will not be, well, confused about the term.

As you may already know, a trademark works to identify goods or services and helps to distinguish them from brands. But what if you have already established a trademark and another company comes along with a mark very similar to yours? This is when the likelihood of confusion model comes into play.

For example, say you have a thriving chain of coffee and donut shops in California trademarked as "O'Neil Coffee Shack." Another company begins to open similar shops known as "O'Neal Coffee Shop." Will this moniker cause your clientele to think the new coffee stores are part of your chain? In other words, will the new chain cause confusion among your customers?

If you decide that the answer is yes, you may choose to seek a legal remedy. Trademark law courts will probably turn to the likelihood of confusion model to make a decision about whether the case is infringement. Here are a few of the factors the court will look at:

  • The strength of your trademark
  • The similarity of the two marks
  • The similarity of the goods or services
  • Intent of the other shop owner
  • Evidence of actual confusion

If you have registered your trademark, there is a good chance you could win your claim and this is why we strongly recommend trademark registration. Doing so will add another layer of protection under trademark law to keep your brand and your business safe from competition. As always, you can learn more about intellectual property protection on the pages of our website.

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