When the “trademark bully” epithet is hurled at a trademark owner “caught in the act” of enforcing or otherwise protecting its intellectual property rights, another common accompaniment is the expressed outrage and indignation that no one could ever possibly be confused.
Here are a few points worth noting:
- The test of infringement is likelihood of confusion, not actual confusion.
- Likelihood of confusion is not only to source, but sponsorship, affiliation, etc.
- If a famous mark is involved, likelihood of confusion isn’t even required.
And, perhaps most importantly, as the Trademark Trial and Appeal Board recently reminded, likelihood of confusion determinations must be based on “the least sophisticated potential consumers.”
Let’s just say, look around, that’s an awfully low threshold.
So, when hurling the epithet it’s probably a good idea to make sure your conclusion to apply the label is based on what the law is, and not what you think the law should be.