What is the “likelihood of confusion?”

| Feb 22, 2021 | intellectual property & trade secrets

How do business owners determine if a competitor has infringed on their trademark?

It might seem straightforward if a start-up uses a name too similar to your company’s, or other companies sell products with designs that match your logo too closely. The evidence of infringement might be clear, but there is one more factor that influences infringement – confusion.

Confusion: The basis for infringement cases

The likelihood of confusion is often at the center of most trademark infringement cases. This concept refers to the confusion on the consumer’s part. For example, if two trademarked products share a similar name, consumers might confuse the source, or maker, of those products.

Generally, the United States Patent and Trademark Office (USPTO) will review the likelihood of confusion in the process of registering a trademark. That way, they can ensure it does not resemble one that a business has already registered.

However, as Forbes reports, these cases are common, and they are a considerable risk to a business’s success and brand.

How do courts determine if there is a likelihood of confusion?

According to USPTO, the likelihood of confusion is based on the similarities, specifically:

  1. The similarities between the appearance, sound, impression or even the meaning of the name, brand, logo or product.
  2. The similarities between the products or services provided by the entity.

These are the most important factors to consider, since these similarities increase the risk of consumer confusion, and therefore become an issue of unfair competition as well as infringement.

As a business owner in California, it is critical that you understand this concept. It can help you ensure you create effective and unique trademarks, but also protect your current trademarks – and your loyal consumers.