Likelihood of Confusion Tests - 7th Circuit

Introduction

Likelihood of consumer confusion is the core issue in any trademark infringement action under the Lanham Act (15 U.S.C. §§ 1114(1)(a) and 1125(a)(1)). Each federal circuit court applies its own version of the likelihood of confusion test, although many factors overlap.

Likelihood of Confusion Factors

• The degree of similarity between the marks in appearance and suggestion.

• The similarity of the products for which the mark is used.

• The area and manner of concurrent use.

• The degree of care likely to be exercised by consumers.

• The strength of plaintiff’s mark.

• Actual confusion.

• An intent by the alleged infringer to palm its products off as those of another.

  (Helene Curtis Indus., Inc. v. Church & Dwight Co., 560 F.2d 1325, 1330 (7th Cir. 1977).)

  
  

Important Considerations

•         While no one factor controls, the Seventh Circuit typically gives the most weight to:

1. The similarity of the marks;

2. The defendant’s intent; and

3. The evidence of actual confusion.

   (Ziebart Int’l Corp. v. After Mkt. Assocs., 802 F.2d 220, 226 (7th Cir. 1986).))