Trademark law seeks to proactively prevent consumer confusion; thus it does not require proof of actual consumer confusion in order for infringement to occur. All that is necessary is that the trademark owner proves that a hypothetical, “reasonably prudent” consumer would likely be confused by the use of the same or a similar trademark on potentially competing products. The hypothetical purchaser is not expected to make detailed, side-by-side comparisons or to have perfect recall.
Infringement Includes Consumer Confusion of any Kind
Infringement is not limited to confusion of consumers as to source, but includes confusion of any kind with respect to consumers or potential consumers. Courts have even found a likelihood of confusion to exist where the public at large could be confused, even though the actual purchasers themselves were not confused.
Factors Used to Determine Likelihood of Confusion
In determining likelihood of confusion, courts evaluate several factors. No one factor is determinative in and of itself and how important one factor is over another is case specific. The factors are as follows:
Whether or not the goods or services using the same mark compete with one another. Marks that are used on similar or related goods or services are more likely to confuse consumers as to the source of those goods or services.
•Whether or not the goods or services are so closely related that they are being marketed through the same stores or channels of distribution.
•Whether or not the alleged infringer intended to trick consumers in order to “cash in” on the plaintiff’s business good will.
•Whether the marks are similar in appearance, phonetic sound, or meaning.
•How careful the consumer is likely to be prior to purchasing. The more sophisticated the consumer or the more expensive the product, the more discriminating the consumer is expected to be and the less likely confusion will be attributed to them.
•Whether or not the companies are accessing overlapping customer bases. If the companies both sell mainly to the same groups, there is more likely to be consumer confusion.
•The legal strength of each of the marks. The greater the public recognition of a mark as a source identifier, the more likely that similar uses will be confusing.
•Whether there has been any actual confusion. The fact that there has been actual confusion is not conclusive evidence of likelihood of confusion, but it must be weighed together with the other factors.
Control Over Quality of Products
Trademark law frequently refers to the confusion of consumers or the probable confusion of consumers. The reason for this is that trademark law is not as much about protecting business interests as it is about protecting consumers. By providing a business with the incentive of increased profits by the grant of exclusive rights in a mark and imposing a duty upon that owner to stop others from using that same mark on competing products, trademark law gives consumers some amount of certainty about the quality of products they buy. If one brand satisfied the customer more than another, that customer could easily find the brand they liked without having to read ingredient labels or scrutinize packaging, materials, and workmanship. This saves the consumer time and allows him or her to make informed purchase decisions. For this reason, the standard of when a trademark right is being infringed has entirely to do with whether or not a consumer is going to be confused, and thus deprived of making informed purchasing decisions.
Obligation to Police Trademark
It is because of the focus on consumer protection that businesses are not allowed to ignore infringing uses of their mark. Companies who tolerate infringing uses of their mark risk losing all their rights in the mark if a third-party challenger claims the company abandoned the mark by not enforcing it.