What Does Confusingly Similar Mean?

What Does Confusingly Similar Mean?

What does “confusingly similar” mean? What is confusion? From the trademark perspective, confusion is not about "uh, I'm confused, I don't know what I'm looking at." From the trademark perspective, confusion is a test that allows the Trademarks Office and the courts to make a decision whether two trademarks can coexist or whether one is too close to the other one.

What they do is they think of a fictional character, they call it “consumer in a hurry,” who may have heard about the first brand, have seen it, have some memory of it. It's what's called an imperfect recollection of that first brand. What happens in their mind when they see the second brand? What they do is they try to, the courts and the Trademarks Office, they try to decide what would that person think? Would they think that the second brand comes from the same source as the first one, or would they be able to easily tell that one comes from one and the other comes from the other? Based on that, they're going to make their decision.

The test is “confusingly similar”, not just “similar”. Not just identical. What they're going to do is they're going to assess similarity in terms of how the two brands look like, how they sound, and what they mean. There is no black and white answer often, but you do it through thinking about that mythical person who is that consumer in a hurry. That's what the confusion is all about. At that point, when you start going through that analysis. You're going to be like, "Uh, I don't really know what the judge is going to decide." There's a lot of cases that will help you make that determination and if you have professionals helping you with that, you're going to have a pretty good idea.

The other thing that you should remember is that confusion is not just about comparing the brand to a brand, it's also about comparing goods and services to goods and services. If one brand is registered for, let's say, fishing supplies and the same brand is trying to get registered for accounting services, even if it's the same name, the name is identical, there is no likelihood of confusion because people who buy accounting services, they will know that the same company is very unlikely to also sell them fishing supplies, and the other way around. That's also a big, important step in the likelihood of confusion analysis. It's not just about comparing two brands, it's also comparing products and services and it's also comparing everything around that.

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