Lapp Test Law and Legal Definition

The Lapp test is a test concerning trademarks. It is the standard used to determine whether a likelihood of confusion exists between two trademarks. Pursuant to the Lanham Act, a trademark infringement occurs if the use of one trademark causes a likelihood of confusion with another previously established trademark. A likelihood of confusion exists when an allegedly infringing trademark is likely to cause an appreciable number of reasonably prudent purchasers to be confused as to the source or origin of the products or services it is used to identify.

The Lapp test was developed for cases of alleged trademark infringement and unfair competition by a producer of a non-competing product. The United States Court of Appeals for the Third Circuit has held that the Lapp test is to be employed when examining both competing and non-competing goods. The Third Circuit has also employed the Lapp factors in trade dress infringement actions. [McNeil Nutritionals, LLC v. Heartland Sweeteners LLC, 512 F. Supp. 2d 217 (D. Pa. 2007)].

The Lapp test is a qualitative inquiry, and the Lapp factors are not to be mechanically tallied, but rather are tools to guide a qualitative decision. [CSC Holdings, LLC v. Optimum Networks, Inc., 2010 U.S. Dist. LEXIS 84951.] Some of the lapp factors are: similarity of the marks; evidence of actual confusion; similarity of marketing and advertising media; extent to which the targets of the parties’ sales efforts are the same; similarity of products; strength of plaintiff's mark; sophistication of consumers when making a purchase; defendant’s motive in adopting the mark; and other factors suggesting that consumers might expect the original owner to manufacture both products, or expect the prior owner to manufacture a product in defendants market , or expect the prior owner is likely to expand into defendant’s market.