Likelihood of Confusion in Trademark Law: A Brand Owners Guide

65 questions on likelihood of confusion in trademark law, answered and cited by the UpLaw editorial team.

• Can AI replace a trademark clearance search?
• Can a TTAB decision bind a later district court?
• Can corporate officers be personally liable for trademark infringement?
• Can parody still help a defendant after Jack Daniel's?
• Can two non-identical marks still be confusingly similar?
• Does confusion have to be among purchasers?
• Does incontestability make a mark strong?
• Does the same word always fall in the same place on the distinctiveness spectrum?
• Do I have to prove people were actually confused to win?
• Do the different circuits' confusion tests actually reach different results?
• Has initial-interest confusion been narrowed?
• How do courts compare two marks for similarity?
• How do courts weigh the confusion factors against each other?
• How does consumer sophistication affect likelihood of confusion?
• How does relatedness work for complementary but non-competing products?
• How does reverse confusion change the application of the factors?
• How does the EU's likelihood-of-confusion standard differ from the U.S. test?
• How does the quality of the junior user's goods affect the analysis?
• How does third-party use of similar marks affect a confusion analysis?
• How famous must a mark be to qualify for dilution protection?
• How important is evidence of actual confusion?
• How is a mark's strength actually assessed in a crowded field?
• How likely does confusion have to be?
• How much confusion does a survey need to show?
• If I win on confusion, will I get money?
• Is buying a competitor's trademark as a search keyword illegal?
• Is knowing about the senior mark the same as bad faith?
• Is likelihood of confusion a question of law or of fact?
• Must a plaintiff prove willfulness to disgorge an infringer's profits?
• Must the parties be direct competitors for their goods to be "related"?
• My mark is strong but not famous. Can I sue for dilution?
• What are the DuPont factors and where do they apply?
• What are the Polaroid factors?
• What are the Sleekcraft factors?
• What are the two dimensions of trademark strength?
• What did Jack Daniel's v. VIP Products decide about parody?
• What equitable defenses can bar a trademark claim?
• What extra remedies apply in counterfeiting cases?
• What injunctive relief is available for trademark infringement?
• What is an Eveready survey and when is it used?
• What is a Squirt survey and what are its risks?
• What is classic descriptive fair use?
• What is dilution by blurring and how is it proven?
• What is initial-interest confusion?
• What is likelihood of confusion in trademark law?
• What is nominative fair use?
• What is post-sale confusion?
• What is reverse confusion?
• What is the bridging-the-gap factor?
• What is trademark dilution and how does it differ from infringement?
• What keyword advertising cases matter most?
• What kinds of mistaken belief does trademark law guard against?
• What makes a consumer survey defensible under Daubert?
• What must a plaintiff prove to win a trademark infringement case?
• What other kinds of trademark surveys are there?
• What remedies does the ACPA provide against cybersquatters?
• What should a brand owner do before a dispute arises?
• What speech does the dilution statute exempt?
• What structural features of Chinese trademark law trap foreign brand owners?
• When are attorney's fees available in a trademark case?
• When is an online marketplace liable for infringing listings?
• Why do courts discount the shared-channel factor in internet cases?
• Why is anecdotal confusion evidence evidentiarily fragile?
• Why is the consumer-care factor criticized?
• Why is the TTAB's confusion analysis different from a district court's?