Trademarks: Likelihood of Confusion

There are hundreds of trademark examining attorneys at the United States Patent and Trademark Office. Any one trademark examining attorney could be assigned to examine your application and could issue an initial "likelihood of confusion" refusal for your trademark application. Clients, of course, never see the "likelihood of confusion" issue in the same way as the trademark examining attorney does.

In order to attempt to defeat the refusal (which can be very challenging and ultimately unsuccessful), consider the Top Five relevant factors evaluated when making a likelihood of confusion determination:

1. Similarity/Dissimilarity of your mark and the mark(s) identified by the trademark examining attorney;

  • Do the marks contain the same words? design elements? Do the words sound alike?

2. Similarity/Dissimilarity and nature of the goods/services (as described) of your mark and the mark(s) identified by the trademark examining attorney;

  • How similar are the goods/services to one another? Could a customer be confused potentially and buy the wrong product?

3. Similarity/Dissimilarity of trade channels in which the respective mark owners sell their goods/services;

  • Do the goods/services travel in all ordinary channels of trade? Are the trade channels limited? Do the trade channels overlap with each other?

4. Care/attention expected of the consumers of the goods/services of the respective marks;

  • Are the purchasers of the goods/services sophisticated? Are the goods/services low-cost items for which an ordinary purchaser would exercise little purchasing care when deciding whether or not to purchase?

5. Fame of the mark(s) cited by the trademark examining attorney.

Confused yourself now?

A trademark attorney can assist you in trademark selection so as to avoid wasting money on an application that could generate a "likelihood of confusion" refusal in the first place.

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