An infringing trademark is likely to confuse consumers about the source of the goods or services the mark is being used to advertise. It can lead consumers to believe the advertised goods or services come from somewhere other than where they really come from. It can also cause consumers to believe the goods are endorsed by or associated with another person or business when they in fact are not. This is known as likelihood of confusion. If the likelihood of confusion is great enough, the trademark may be considered infringing.

The question becomes: how likely is it that the mark will actually confuse consumers? Incidence of actual confusion may be the best evidence of likelihood of confusion, but it is not the only factor courts will consider. In fact, isolated instances of actual confusion alone are often not enough to sustain a trademark infringement claim. Another factor is the mark's strength: how distinctive is the trademark? Is it a weaker mark which merely describes the goods and services (such as “Moorestown Hardware Store”) or is it arbitrary or fanciful, (such as “Apple Computers” or “ExxonMobil”)? Is the mark well known?

Next, as you may have guessed, is the similarity of the marks. Consumers are more likely to recognize stronger trademarks. This means a mark that is similar to another mark is more likely to be considered infringing if the other mark is strong and well known. In other words, stronger marks generally allow less “space” for similar marks than is the case with weaker marks. The stronger the mark, the greater the risk of infringement if the other mark appears to be similar.

The alleged infringer's intent also comes into play: if the infringer knew of the competing mark and deliberately adopted a mark like it, those actions will suggest the infringer believed the infringing mark would divert business. This kind of intent can constitute evidence of likelihood of confusion.

Courts will also consider the consumers themselves: are the consumers likely to carefully scrutinize what they are buying? Consumer care is generally higher for more expensive products like jewelry and lower for casual purchases like chewing gum.

Courts will also consider the similarity of the products themselves. Depending on other factors, a similar trademark relating to a completely different product may not be considered infringing at all. This is especially the case if the marks are geographic. For example, consumers would be unlikely to confuse a business named “Moorestown Auto Parts” with a business named “Moorestown Pizza Parlor.”

The above factors are not exclusive and depend heavily on one another in determining whether a mark is infringing. For further questions, please contact the trademark infringement attorneys at Thomas P. Howard for a free consultation.