It’s important to trademark analysis, but what exactly does Likelihood of Confusion mean?
The federal appeals courts in the United States have created legal tests related to likelihood of confusion. The United States is split into what’s known as Circuits, and Ohio, Michigan, Tennessee, and Kentucky are what’s known as the Sixth Circuit. So, we’ll discuss the Sixth Circuit likelihood of confusion test that is similar to the other appeals courts’ tests.
In a case known as Frisch’s there are eight elements the Sixth Circuit will consider to determine whether there is a Likelihood of Confusion:
1. the strength of the plaintiff’s mark;
2. relatedness of the products;
3. similarity of the marks;
4. evidence of actual confusion;
5. plaintiff’s marketing channels;
6. likely degree of purchaser care;
7. defendant’s intent in selecting the mark; and
8. the probability that the product lines will expand.
Frisch's Restaurants, Inc. v. Elby's Big Boy, Inc., 670 F.2d 642, 648 (6th Cir. 1982). The Sixth Circuit has held that “Each case is unique, so not all of the factors will be helpful.” Kibler v. Hall, 843 F.3d 1068, 1073 (6th Cir. 2016). “Further, there is no designated balancing formula for the factors.” Id. “The enumeration is meant ‘merely to indicate the need for weighted evaluation of the pertinent facts in arriving at the legal conclusion of confusion.’” Id. In other words, the factors that are considered, and the factors that are most important will depend on the case.
If you get a likelihood of confusion office action, the examiner may say that the “two key considerations” are similarities between the marks and relatedness of goods and/or services.
Because this definition of likelihood of confusion is clear as mud, you’ll want a trademark lawyer to assist you in advising you on the likelihood of confusion.
Please note that the information contained in this article is intended for general informational purposes only and not as specific legal advice. The facts of your situation may differ from this general information. It is not intended to and does not in any way establish an attorney-client relationship.
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