When seeking to register a trademark, brand owners who don’t understand likelihood of confusion think that if they don’t find a registered trademark that is exactly the same as theirs, they can get a registration. This is incorrect. By understanding how likelihood of confusion works, brand owners can pick a strong trademark that can get registered.

Likelihood of confusion is a real thing in trademark law.

Likelihood of confusion is a real thing in trademark law.

What Is Likelihood of Confusion?

The main function of a trademark is to clearly identify the producer of a good or service. It’s about making sure that consumers know who is behind a brand. Likelihood of confusion is a legal doctrine that helps the United States Patent and Trademark Office (USPTO) and courts determine if one trademark would be confused with another.

A common misconception is that if there are no trademarks that are the same as yours, then your trademark is safe to use. This is a big problem because it ignores the reality of likelihood of confusion. For example, the trademark “Kooka Kola” may or may not be registered, but if you tried to register it for soda, you would almost certainly be rejected because it is potentially confusing with another well-known brand of soda.

Whether or not two trademarks are likely to be confused depends upon a number of factors, including: how similar the two trademarks are in sound and appearance; the relatedness of the goods and services associated with each trademark; and the similarity of the markets targeted by each trademark.

Sometimes a likelihood of confusion analysis is easy (like in the above example), but sometimes it can be more complex and requires legal expertise to do properly.

Why Is Understanding Likelihood of Confusion Important?

It is important to understand likelihood of confusion because if you pick a trademark that can be confused with an existing trademark, the USPTO might refuse to register your trademark and issue an Office Action that can be expensive to respond to properly. Additionally, owners of potentially confusing trademarks might try to oppose or cancel your trademark. These are headaches that you want to avoid.

Also, the essence of a strong brand is that it is different from its competitors. That means that a wise brand owner will seek a trademark that stands out from others in the market. By thinking about likelihood of confusion proactively, you can avoid registration problems and you can make sure that your brand gets a strong start.

Likelihood of confusion is not always intuitive, so it’s smart to seek legal advice when seeking to establish a brand. Doing so will often prove to be an investment that pays dividends for a long time.


Creators’ Legal Program Members-Only Video Content: What Should I Do If My Trademark Is Confusing with Someone Else’s Trademark?

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