Likelihood of confusion occurs when, in connection with any goods or services, any person uses a designation which is likely to cause a mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by the other person. Likelihood of confusion is typically determined by evaluation of a number of factors, such as:
(1) the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression;
(2) the similarity or dissimilarity and nature of the goods described in the application or registration of the mark, or in connection with which a prior mark is in use;
(3) the similarity or dissimilarity of established, likely-to-continue trade channels;
(4) the conditions under which and the buyers to whom sales are made;
(5) the fame of the prior mark;
(6) the number and nature of similar marks in use on similar goods;
(7) the nature and extent of any actual confusion;
(8) the length of time during and the conditions under which there has been concurrent use without evidence of actual confusion;
(9) the variety of goods on which a mark is or is not used;
(10) the market interface between the applicant and the owner of a prior mark;
(11) the extent to which the applicant has a right to exclude others from use of its mark on its goods;
(12) the extent of potential confusion; and
(13) any other established fact probative of the effect of use.
The above factors were articulated in In re E.I.du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973), which governs proceedings before the U.S. Patent and Trademark Office, including the Trademark Trial and Appeal Board. Each circuit court across the country has a similar set of factors and associated seminal case governing cases within its jurisdiction.
