Likelihood of Confusion

Also known as: Trademark Similarity, Confusing Similarity, İltibas, Karıştırılma Olasılığı, IP Law Article 6(1)

In short

The risk that consumers will believe that goods or services under two trademarks come from the same or economically linked undertakings because of the similarity of the signs and of the goods or services; the central test in oppositions and infringement cases.

Likelihood of confusion is the most frequently applied test in trademark law. Where a later mark is identical or similar to an earlier mark and covers identical or similar goods or services, consumers may believe that they come from the same or economically linked undertakings. This includes the likelihood of association with the earlier mark (IPL Article 6(1)).

Where It Arises

Trademark oppositions (IPL Article 6(1))
Trademark invalidity actions
Trademark infringement actions and criminal investigations (IPL Articles 7, 29, 30)

Factors

Similarity of the signs: Visual, aural and conceptual similarity are examined separately; the marks are compared as a whole and by reference to their dominant, memorable elements.
Similarity of goods and services: Nature, intended purpose, whether they compete or complement each other, distribution channels and target consumers.
Distinctiveness of the earlier mark: Strong and well-known marks enjoy broader protection; weak marks close to descriptive terms have a narrow scope.
Consumer attention: The average consumer rarely sees marks side by side and relies on an imperfect recollection. Attention is higher for expensive, carefully chosen products.

These factors interact: identical goods may require a lower degree of similarity between the signs, and vice versa.

In Practice

A clearance search when choosing a mark is the cheapest precaution. In oppositions and litigation, comparison tables, examples of market use and any evidence of actual confusion become important. Beyond confusion, well-known trademarks may be protected against dissimilar goods and services. See also our article Distinctiveness Assessment in Trademark Examinations.

Frequently Asked Questions

Can there be a likelihood of confusion if marks are registered in different classes?

Yes. Classes are only an administrative tool; goods and services in different classes may be similar. What matters is the nature and purpose of the goods, distribution channels and target consumers, not the class number.

Must consumers actually have been confused?

No. The law requires a likelihood. Evidence of actual confusion is strong but not essential.

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