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Dazed and Confused: A Trademark Story

Today we are talking about a fun legal term, likelihood of confusion.

This is something that you want to know and keep in mind when you’re branding your business. Unfortunately it’s not enough just to find that clever or magical name or logo that so perfectly suits your business…in order to get it trademarked, the mark can’t be ‘confused by/with’ another similar mark. And all of that’s not gonna come up on ye olde google machine.

Confused? Har har har. I can explain. Let’s start with the official, legit definition:

a statutory basis (Trademark Act Section 2(d), 15 U.S.C. Section 1052(d), TMEP §1207 et seq.) for refusing registration of a trademark or service mark because it is likely to conflict with a mark or marks already registered or pending before the USPTO. The principal factors considered are: (1) the similarity of the marks; and (2) the commercial relationship between the goods and/or services listed in the application.

To find a conflict, the marks do not have to be identical, and the goods and/or services do not have to be the same. It may be enough that the marks are similar and the goods and/or services related.

And in human terms, likelihood of confusion basically means that the USPTO has determined that one mark is likely to be confused with another mark.  This doesn’t mean it has to be similar in exact words but alternative spellings or even sounds.  So for example, if you are looking for the mark BLUE JEANS, [which assuming you are selling blue jeans would be a terrible mark but let’s not digress]  you must also search BLOO, BLEW, and BLU, as well as GENE. Even the words BLUE GENIE could mean your mark is infringing.  Any of those variations could potentially be determined as likelihood of confusion.

And, let’s say you had a mark like Girl Power, the USPTO could determine that a mark like Boy Power had a likelihood of confusion.

BIG FAT MORAL OF THE STORY: this is why a basic search is not always enough when you’re exploring a trademark.


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