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“Likelihood of confusion” is a test applied during a trademark examination process to determine if a conflict exists between the applied-for mark and another mark registered or pending before the USPTO. This test is also used in trademark infringement proceedings to determine whether the use of a mark infringes a registered trade mark.

The principal factors considered by the examining attorney to determine whether there is a “likelihood of confusion” are:

  • the similarity of the marks; and
  • the commercial relationship between the goods and/or services listed in the application.

The marks and the goods/services need not be identical to find a conflict. Rather the marks must be close enough to confuse the public as to the source of the goods. The principal factors considered by the federal courts to decide whether there is “likelihood of confusion” are:

  • strength of the mark;
  • similarity of the marks (including colors, phonetic similarities, & underlying meanings);
  • similarity of the marketing channels of the goods/services;
  • evidence of actual consumer confusion;
  • defendant’s intent in choosing the mark;
  • physical proximity of the goods in the retail marketplace;
  • degree of care likely to be exercised by the consumer; and
  • the likelihood of expansion of the product lines.

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