Likelihood of Confusion

Trademark Infringement Expert Witness

Likelihood of Confusion

In order to prove infringement, the requirement is proof of a likelihood of confusion, not necessarily evidence of actual confusion. Nevertheless, a plaintiff must prove that confusion is “probable,” not merely possible. However, a plaintiff is not required to go so far as to show there is actual confusion of customers.

With few exceptions, federal courts consider seven primary factors in determining whether a likelihood of confusion is present. IPmetrics can provide a business-based analysis of these key factors, including:

  1. Similarity of the marks;
  2. Similarity of the goods sold;
  3. Common geographic areas;
  4. Degree of care employed by consumers;
  5. Similarity of advertising;
  6. Common channels of distribution; and,
  7. Actual evidence of confusion.

There are at least three routes of prove a likelihood of confusion: (1) survey evidence, (2) evidence of actual confusion and/or (3) argument based on a clear interference arising from a comparison of the conflicting marks and the context of their use.

The most common and widely recognized type of confusion is purchase confusion at the point of sale. In addition, the vast majority of courts also recognize other forms of confusion, including: post-sale confusion and initial interest confusion, as well as the concept of reverse confusion. With post-sale confusion, consumers may not be initially confused at the time they bought the product; however, downstream confusion as to the origin or nature of the products can become evident. Alternatively, confusion can exist in situations where initial customer interest is created, even though no actual sale is finally consummated.

The traditional pattern of classic “forward confusion” occurs when customers mistakenly think that the junior user’s goods or services are from the same source as or are connected with the senior user’s goods or services. In “reverse confusion” customers purchase the senior user’s goods under the mistaken impression that they are getting the goods of the junior user. Moreover, consumers may believe that the junior user is the rightful owner of the trademark.  In a reverse confusion situation, rather than trying to profit from the senior user’s mark, the junior user saturates the market and overwhelms the senior user.

Despite the existence of the evaluative criteria noted earlier, the determination of confusion is often subjective, and as such, great variability may exist. This necessitates intellectual property experts that are aware of these contingencies and have experience with the nuances of the courts and their judgments. At IPmetrics, we have demonstrated, time and again, expertise in analyzing the key business issues surrounding the issues of confusion and reverse confusion.  

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