Likelihood of Confusion [Trademark] Law and Legal Definition

Likelihood of confusion can be a statutory basis for refusing registration of a trademark or service mark. This is so because it is likely to conflict with a mark or marks already registered or pending before the United States Patent and Trademark Office (PTO). The main and important factors considered by the examining attorney in deciding whether there is a likelihood of confusion are the similarity of the marks; and the commercial relationship between the goods and/or services listed in the application.

After an application is filed, the assigned examining attorney will search the PTO records to determine if such a conflict exists between the mark in the application and another mark that is registered or pending before the PTO. The PTO shall not conduct any preliminary searches for conflicting marks before an applicant files an application and cannot provide any legal advice on whether a particular mark can be registered.

In order to be a conflict, the marks do not have to be identical, and the goods and/or services do not have to be the same. It may be enough that the marks are similar and the goods and/or services related. If a conflict exists between one party’s mark and a registered mark, the examining attorney will refuse registration on the ground of likelihood of confusion. In case of a conflict between your mark and a mark in a pending application filed before your application, the examining attorney will notify you of the potential conflict and possibly suspend action on your application. If the earlier-filed application gets registered, the Examining Attorney shall refuse registration of your mark on the ground of likelihood of confusion.