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Everyone Should Learn a Little about Law

Trademark Confusion: What It Is, What Constitutes It, And How To Avoid It

20 July 2015

Kaylee Wells

Trademark confusion is a huge problem in US Law. A trademark is essentially an intellectual property that is owned by an entity that can only be used by that entity. Trademark violation occurs when another entity, be it a person, small business, LLC, or corporation, uses that trademark without the consent of the trademark holder of that intellectual property. Trademark confusion is a bit different. Trademark confusion occurs when an entity uses something that could be confused for the trademarked intellectual property without being the trademarked intellectual property itself. Throughout the course of this brief article, you'll learn a bit about some of the ins and outs of trademark confusion, what it is, how it is constituted and how to avoid it.

What Is Trademark Confusion

Trademark confusion is not a valid legal term, but rather refers to the potential to confuse potential customers. Customers may be confused if a company uses trademarked intellectual property, or an icon with very similar features to a trademarked intellectual property, without that company's consent. This could potentially lead consumers to confusing the "off" brand with the "on" brand, either intentionally or unintentionally, by the purveyors of the "off" brand.

For example, Company X, a used car company, decides to use the likeness of a super hero that bears more than a passing resemblance to a famous super hero owned by a large comic book company. The super hero, with his head of slick black hair, red cape and styling blue and red costume, is used to advertise their used car lots.

This could be a case of trademark confusion if it is determined that Company X was using this icon to mislead consumers into believing that the super hero was advertising for their company. As you will soon see, this issue is more complex than this matter, but this is a good springboard from which to investigate the matter more closely.

What Constitutes Trademark Confusion

This matter is a bit too complex to get into due to the confines of this brief article, but it should be stated that, first and foremost, intention does not constitute trademark confusion, or rather, trademark violation, whatsoever.

To use the example of Company X again: what if Company X argued, in a court of law, that it was never their intention to portray the super hero as advertising for their company? Simply put, the judge would not care. Trademark violation is not a matter of intention, but rather, a matter of likeness and perception. This is to say that if the character's likeness was close enough to the original super hero, Company X could be held accountable for trademark violation – and, if the perception of the general public was that this character was acting as an advertisement for Company X, this would count as being misleading. In both of the cases, Company X could be found accountable for trademark violation.

How To Avoid Trademark Confusion

In general, the best way to go about avoiding trademark confusion is to avoid using any symbols, advertisements or icons that resemble the trademarked intellectual property of other entities. This includes, but is not limited to, things such as logos, mascots and even similar names. For example, if you are a company that deals with computer parts, and you decide to title yourself "Big Apple", and your logo is that of the outline of an apple, this could easily be construed as misleading. The company Apple already exists and is well established. By adopting a similar name and logo, you could be in violation of a trademark. If you think that you might have a trademark that could result in trademark confusion, to be absolutely certain that you are not committing trademark confusion, you should consult with an experienced patent lawyer who can help guide you through the complicated rules involved in trademarking.

Trademark violation can be a serious issue, and if you are not careful, trademark confusion can lead to trademark violation. It's best to stay away from icons, logos, mascots and names that are similar to well established companies. For more information, contact a lawyer.

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