Trademark Infringement:

According to the Lanham Act, infringement of a registered trademark will be found if its use by another “ is likely to cause confusion, or cause mistake, or to deceive.” [¶32{1] 1982. Courts analyze many factors to determine whether confusion is likely to result from the actions of a defendant.

Likelihood of Confusion

In order to prove infringement, it is required that there is a likelihood of confusion, not actual confusion. A plaintiff must prove that confusion is “probable,” not merely possible. However, a plaintiff is not required to go so far as to show there is actual confusion of customers.

The most common and widely recognized type of confusion, creating infringement, is purchase confusion of source at the time of purchase. This is called point of sale confusion, but it does not mark the outer boundaries of trademark infringement. The vast majority of courts also recognizes other forms of confusion, for example, post-sale confusion, initial interest confusion, and reverse confusion.

Despite the existence of the evaluative criteria noted earlier, the determination of confusion is often subjective, and as such, great variability may exist. This necessitates content experts that are aware of these contingencies and have experience with the nuances of the courts and their judgments. I have both experience and success working in the area of “likelihood of confusion.” I have represented plaintiffs and defendants and have a very high hit rate.


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