What is likelihood of confusion?

Likelihood of confusion is the chief standard applied to the question of whether two trademarks conflict, and is the standard applied: (i) by the Patent and Trademark Office when determining whether a trademark should be federally registered; (ii) in lawsuits for trademark infringement; (iii) and in trademark opposition proceedings before the Trademark Trial and Appeal Board.

The analysis of whether there is a likelihood of confusion focuses on a variety of factors to determine the impact of both marks on the perception and memory of the consumers. A likelihood of confusion exists here if the public will be confused about the source of the goods or services in question. Where there is such a likelihood of confusion, the owner of the prior trademark (the earlier applicant for a trademark registration, the plaintiff in an infringement lawsuit or the opposer in an opposition proceeding) can have the other mark’s use prevented.

Finally, it should be noted than when a determination is being made as to whether there is a likelihood of confusion, it should not be assumed that the two marks at issue will be seen together (side-by-side) by the consumers. Rather, the focus is on the impression each mark leaves on the consumers’ minds.

How is likelihood of confusion determined?