Trademarks And The Likelihood Of Confusion: What Small Businesses Need To Know

4 June 2019
 Categories: Law, Blog

What is "likelihood of confusion" where trademarks are concerned and why is it so important? If you own a trademark (or are thinking of applying for one), it's important to understand this major principle of trademark law from the very start.

Here's what you need to know:

What exactly is the role of a trademark?

In order to understand why likeliness of confusion is important, you have to fully understand the purpose of a trademark in the first place.

Trademarks are any kind of symbol, mark, figure, word, or name that a manufacturer or seller uses on his or her goods designed to make those goods distinct from the goods made or sold by another.

Some of the most famous trademarks you probably know are the "Apple" logo of an apple with a bite out of it, the "swoop" Nike has on its products, and the big red dot used by Target. Those three each convey a certain automatic understanding of the type and quality of the product bearing the mark — and each brand hopes that it will encourage people who see the symbol to choose their product over a competitor's.

What happens when two trademarks are similar?

When two trademarks bear certain similarities, "likeliness of confusion" may occur in consumer minds. The likeliness of confusion is actually a legal standard that is used in court to determine if one company's trademark infringes upon another's. The likeliness of confusion between two trademarks can be dependent on many different things, including the brand's visibility, the uniqueness of the mark, the presence in the consumer mindset, physical similarities, evidence of confusion, the type of products, and several other factors.

For example, if a company started manufacturing headphones and other electronic accessories that were stamped with a trademark that looked like an apple without the bite out of it, that's still likely to make consumers think of Apple -- and may still very well be enough to confuse the average consumer into thinking that the product they were buying was either made or endorsed by Apple. While that's a fairly easy example of likely trademark infringement, most cases of likeliness of confusion aren't as clear-cut — which is why litigation over the issue can be fierce.

What can an attorney do to help with trademark confusion?

One of the roles of a trademark attorney is to search the United States Patent and Trademark Office's records when you first design your trademark to see if it is too much like any other registered mark that might cause confusion in consumers. That alone can prevent you from a lot of trouble down the line.

A trademark attorney can also help if you believe that someone is infringing on your registered mark by conducting a survey of consumers to obtain proof that the other company's mark is likely to or actually causing confusion for your brand. Then, you can use that evidence to protect your mark in court, if necessary.