Confusion: 1

Let's talk trademarks and likelihood of confusion

Screen Shot 2018-03-01 at 11.30.30 AM.png

Trademark registration will be denied if the USPTO attorney believes there is a liklihood of confusion. The primary determiner is based on a test called the Poloraid test from a 1961 federal case, which asks these 9 questions to determine whether confusion can be found. 

  • Strength of the senior user’s mark. The stronger or more distinctive the senior user’s mark, the more likely the confusion.
  • Similarity of the marks. The more similarity between the two marks, the more likely the confusion.
  • Similarity of the products or services. The more that the senior and junior user’s goods or services are related, the more likely the confusion.
  • Likelihood that the senior user will bridge the gap. If it is probable that the senior user will expand into the junior user’s product area, the more likely there will be confusion.
  • The junior user’s intent in adopting the mark. If the junior user adopted the mark in bad faith, confusion is more likely.
  • Evidence of actual confusion. Proof of consumer confusion is not required, but when the trademark owner can show that the average reasonably prudent consumer is confused, it is powerful evidence of infringement.
  • Sophistication of the buyers. The less sophisticated the purchaser, the more likely the confusion.
  • Quality of the junior user’s products or services. In some cases, the lesser the quality of the junior user’s goods, the more harm is likely from consumer confusion.
  • related products and services.

If you have created a brand and you see another mark out in the marketplace that hits one of these factos reach out to us, and we can help you determine, how close you are to getting your mark denied.