In UK trade mark law, likelihood of confusion is a core concept used to assess whether a trade mark infringes an earlier registered trade mark under Section 10(2) of the Trade Marks Act 1994.
Definition: What Is “Likelihood of Confusion”?
“Likelihood of confusion” arises when:
A later mark is identical or similar to an earlier trade mark, and is used for identical or similar goods/services, such that the average consumer might:
- Mistake the later mark for the earlier one (direct confusion), or
- Believe the goods/services come from the same or economically-linked undertaking (indirect confusion).
Trade Mark Infringement
Likelihood of confusion is important to consider in two scenarios – when considering whether an application can be successfully opposed, and also when considering if a trade mark has been infringed. If a trade mark has been infringed, the owner of the mark can seek remedies through the Court.
Section 10(2)(b) of the Trade Marks Act 1994 provides that infringement occurs when:
“…the sign is similar to the trade mark and is used in relation to identical or similar goods or services, and there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.”
As detailed above, if either the marks are similar or the goods/services are similar, likelihood of confusion is a required element. It is for the applicant to prove that the likelihood of confusion exists.
To establish likelihood of confusion, courts consider:
- Similarity of Marks
- Visually, phonetically, and conceptually.
- Example: TOPDOG vs TOP DOC – potentially similar phonetically.
- Similarity of Goods/Services
- Must be identical or similar.
- Example: Clothing vs Footwear may be considered similar in fashion retail.
- Distinctiveness of the Earlier Mark
- More distinctive = greater protection.
- A highly distinctive mark (e.g., invented word like Kodak) is more likely to cause confusion when imitated.
- Average Consumer Perspective
- Not legally trained, reasonably well-informed, observant, and circumspect.
- Imperfect recollection is assumed.
- Overall Impression / Global Assessment
- The court weighs all factors holistically, not mechanically.
If you feel your trade mark rights have been infringed or are on the receiving end of infringement threats, please get in touch with Lawdit Solicitors today.
