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?