Photo: Women looking confused by Polina Zimmerman from Pexels.

Trademark Thursday Series II: What is “Customer Confusion”?

What is “Customer Confusion”?
If the government is deciding whether you have the right to prevent someone else from using your mark, they will try to decide what the likelihood is that a customer could be confused about the source of the products/services. To do this, they’ll look at a few things.
First, they’ll look at the likelihood of confusion, not whether there is actual confusion from customers. If you can prove that a customer actually was confused, that will help your case immensely, but actual confusion isn’t required. The government instead would ask, is it likely that a customer could be confused? If so, they will restrict the second company from using a mark, to prevent customers from getting confused in the future.
One factor in deciding the likelihood of confusion is the similarity of the goods or services. The more similar the goods or services are, the more likely a customer might be confused. A consulting company is unlikely to be confused with a cookie shop, even if they have the exact same name. However, a cookie shop and a bakery are similar enough that a customer might think they’re affiliated, and the use of the same mark by both of those companies will probably not be allowed.
Similarly, location has a lot to do with the likelihood of customer confusion. If our cookie shop is based in Oakland, California, and only has one location, and another cookie shop opens up in Maine and only has one location, it is probably unlikely that a customer would be confused about them being the same shop. However, if the second shop opened up in San Francisco, right across the bay from Oakland, a customer is much more likely to be confused.
The government will also look at things like how similar the marks are to each other (are they identical? Similar? How similar?), how strong the marks are (is it a really unique mark, or is it more descriptive? How strongly do your customers affiliate your mark with your brand?), and to what extent you share the same customers.
Looking at all of these factors, the government will decide, based on the likelihood of customer confusion, whether two businesses can use similar marks at the same time.

Read the rest of the Trademark Series: