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The Eight Factors for Likelihood of Confusion

As was said in the last article, in order to have a valid claim for trademark infringement you must have the rights to use the mark in commerce and that by someone else using the mark there may be a likelihood of confusion as to the source of goods or service. In this article we look at the eight factors needed to show that there is a likelihood of confusion.

To analyze whether a particular situation has developed the requisite "likelihood of confusion," courts have generally looked at the following eight factors:

1. The similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);
2. The similarities of the goods and services involved (including an examination of the marketing channels for the goods);
3. The strength of the plaintiff's mark;
4. Any evidence of actual confusion by consumers;
5. The intent of the defendant in adopting its mark;
6. The physical proximity of the goods in the retail marketplace;
7. The degree of care likely to be exercised by the consumer; and
8. The likelihood of expansion of the product lines.

The first five of these factors are examined in every trademark infringement action. The last three factors are the most common additional factors that are considered by a court. The fourth factor may be proven by finding a customer who went to the infringer’s website or called them to find out they were confused as to the company they thought they were contacting.

Of these eight factors, the first two are arguably the most important. If you have a trademark idea or questions about infringement, a trademark attorney is the best place to seek legal advice. If you have any further questions you can always send Trademark Attorney George Leone an email.

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