Likelihood of Confusion
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How You Can Avoid Creating a “Likelihood of Confusion”

There’s no doubt you have put a lot of effort into your business and your brand. If you’ve been following my blog and podcast, you’ll know that you need to create a unique and distinctive brand to avoid creating a likelihood of confusion with other brands in your industry.

When courts consider trademark infringement cases, they analyze the infringement with what’s called “Polaroid Factors.”

Polaroid Corp. v. Polarad Elect. Corp.

Likelihood of Confusion
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The term Polaroid Factors comes from the case Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir. 1961). During the case, Polaroid Corporation was the holder of 22 United States registered trademarks and one New York registration. It brought action against Polarad, alleging that the use of the latter name infringed on Polaroid’s trademarks.

Ruling

Based on past cases, the judge ruled that Polarad had not infringed on the trademark rights of Polaroid.

The judge based the ruling on a lack of likelihood of confusion, the gap between the type and kind of customer of each company, the dissimilarity of their products, and the absence of damage to Polaroid’s reputation.

What is Likelihood of Confusion?

The ruling in Polaroid established a set of considerations to determine trademark infringement. If you feel like your competitor is infringing on your trademark rights, you will have to prove likelihood of confusion using the Polaroid factors.

Keep in mind that whoever registered the mark first has priority in trademark infringement cases. So if you discover there is confusion between your company and another company in your industry, make sure you have priority before suing over a likelihood of confusion.

What Are the Polaroid Factors?

Likelihood of Confusion
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The Polaroid Factors are as follows:

Strength of the Mark

A strong mark has a better chance of proving likelihood of confusion. The more unique the mark is, the stronger it is. You’ll have an easier time proving likelihood of confusion the more distinct and the less descriptive your mark is.

Similarity of the Marks

Similarity is a test of sight, sound, and meaning. Any of these methods of interpretation can count as confusion. If two marks make a similar impression in the market, there might be a case of confusion in favor of the trademark holder with priority.

Similarity and Proximity of the Goods and/or Services

Similar good and services usually exist together in the marketplace. When goods and services interact in the marketplace, the likelihood of similar marks causing confusion increases. The more related the goods are within a marketplaces, the more potential for confusion there is, too.

Likelihood of Bridging the Gap

Another factor is whether or not the mark holder with priority will bridge the gap. Bridging the gap in the marketplace is the expansion into other types of goods and/or services. The more expansion by the senior mark holder, the more chance for confusion.

Intent to Adopt the Mark

If you are worried about infringing on a competitor’s trademark, consider whether or not it will cause confusion. If a competitor takes you to court for infringement and successfully proves you intend to cause confusion, you could face penalties.

Evidence of Confusion

The courts also look at actual evidence of confusion from consumers. Usually the courts get this information from consumer surveys. Good evidence can be tricky to compile but could make a big difference in how an infringement case turns out.

Sophistication of the Consumer

This factor might seem a little confusing, but it comes down to how the market classifies consumers. Each market has different kinds of consumers, but the main differences involve spending and knowledge.

The more expensive a product is, the more selective the courts assume the consumer will be. So, within markets selling expensive or luxury items, it is harder to show likelihood of confusion because the consumer will do more research before buying.

The second biggest difference is between regular and professional consumers. It requires more similarity to prove likelihood of confusion with professional consumers. A good example of a professional consumer is a pharmacist. Because he or she will come to the marketplace with superior knowledge, they are less likely to be confused than a regular consumer in a different market.

Quality

If you believe a competitor is infringing on your rights, the quality of their goods or services is also important. If there is a strong likelihood of confusion, products of a lesser quality could really damage your reputation.

Trademark Infringement

Likelihood of Confusion
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Trademark infringement is a serious matter. When you are building a business the last thing you want is to lose out because of confusion. Always do thorough research to make sure no one is infringing on your rights, but also to make sure that you don’t infringe on the rights of competitors with prior marks.

If you feel that a competitor is engaging in unfair trademark practices, your case will be analyzed using the Polaroid Factors listed above. It’s the job of the priority mark holder to prove likelihood of confusion using these factors.

Consequences

Trademark infringement has serious consequences. If the courts find that there is likelihood of confusion, the offending party will most likely face lofty fees in damages.

Conclusion

Likelihood of confusion is how the courts decide if trademark infringement has taken place. Whether you are the junior or senior mark holder, you’ll need to understand Polaroid Factors while you continue to grow your brand. Whether you are losing out on opportunities because the competition is causing confusion or you are being penalized with high legal fees and damages, trademark infringement can be costly.

You work hard to grow and expand your business. Protecting your business by looking after your trademark rights allows you to keep the fruits of your hard work.

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