FREQUENTLY ASKED QUESTIONS What Does Confusingly Similar Mean?

A common phrase in trademarks describes two different trademarks as being “confusingly similar.” What makes one trademark product confusingly similar to another?

What does "confusingly similar" mean? What is the 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 on whether two trademarks can coexist or whether one is too close to the other one. 

If one trademark product is too confusingly similar to another, the newer one will not be approved. We’ll take a look from a trademark services perspective on how to avoid producing a confusingly similar trademark.


Questions for Confusingly Similar Trademark Product

What they do is they think of a fictional character, they call it a "consumer in a hurry" who may have heard about the first brand, have seen it, or 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, the courts and the Trademarks Office, 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. If your brand is considered confusingly similar, this can force you to resubmit, increasing the cost to trademark a name.

What Makes Confusingly Similar Trademarks Confusing: A Trademark Services Perspective

The test is "confusingly similar", not just similar. Not just identical. 

What they're going to do is they're going to assess similarities in terms of how the two brands look, how they sound, and what they mean. There is no black-and-white answer often, but you do it by 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 are 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.

Comparing Services And the Cost to Trademark a Name

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. 


Disclaimer: Please note that this post and this video are not and are not intended as legal advice. Your situation may be different from the facts assumed in this post or video. Your reading this post or watching this video does not create a lawyer-client relationship between you and Trademark Factory International Inc., and you should not rely on this post or this video as the only source of information to make important decisions about your intellectual property.