Once you have your search results, you need to deter­mine whether any of the other marks you found would likely cre­ate cus­tomer con­fu­sion between your prod­ucts or ser­vices and their prod­ucts and ser­vices. If con­fu­sion is likely, then you should choose another mark (unless you used the mark first, in which case you’ll need to deal with the other uses as an infringe­ment). If con­fu­sion is unlikely, then you may use the mark.

Unfor­tu­nately, this process is not cut and dried. The like­li­hood of cus­tomer con­fu­sion is one of those mushy legal terms that depend on the facts. If you ask for an opin­ion from an attor­ney, they will likely err on the side of cau­tion. Here are some gen­eral guide­lines in deter­min­ing whether there is a like­li­hood of confusion.

Like­li­hood means that con­fu­sion will more than likely hap­pen; that it’s prob­a­ble. Not that it’s already hap­pened or will hap­pen. The sec­ond fac­tor is con­fu­sion. Will a cus­tomer con­fuse your goods and ser­vices with some­one else’s goods or ser­vices? If Apple, Inc. sells com­put­ers and Apple Hair Prod­ucts sells sham­poos, it’s hard to imag­ine some­one acci­den­tally buy­ing a com­puter when they meant to buy shampoo.

Here are few things to look at:

  • Do the prod­ucts or ser­vices use the same dis­tri­b­u­tion channels?
  • Do both prod­ucts or ser­vices appear in the same trade journals?
  • Are both prod­ucts dis­played or sold in the same stores?
  • Do the prod­ucts or ser­vices tar­get the same cus­tomer base?
  • Do the prod­ucts or ser­vices sound or look alike?
  • Do they cost the same?
  • How many cus­tomers are con­fused (is it 5%, 50%, 80%)?
  • Does the owner of the mark have a his­tory of infringe­ment law­suits? (If they do, then move along.)
  • Do the marks appear in the same inter­na­tional classification?