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Likelihood of Confusion in Trademarks Infringement Claims

Success breeds imitation. In life and in business one of the sincerest forms of flattery comes when someone seeks to imitate your success. Flattery can turn to misuse, however, when you're successes are imitated too closely. Fortunately, trademarks serve to protect against such imitation where there may be a likelihood of confusion between two or more businesses and their products.

If you're products need trademark protection, or you suspect someone is imitating your products too closely, you should contact an intellectual property law attorney who can help you to protect your success.

One of the paramount questions in any trademark infringement claim is whether there is a likelihood of confusion between the alleged infringing product and the protected mark. A simple example of this is illustrated in the image below.

On the left is an image of Apple Computers' music application logo for it's numerous devices. On the right is an image of MySpace's music logo for its online music listening services. Though not entirely the same, it is easy to see by appearance alone how consumers may mistake the two logos. You don't have to take my word for it, the court in ____ agreed!

Though the appearance of the products is a paramount criterion for courts considering an infringement claim, establishing a likelihood of confusion is often trickier than just looking at the products side-by-side. Courts will also consider factors such as the marketing environment the products are sold in, the similarity of the products offered, the strength of each mark to consumers, the quality of the products, and even the sophistication of the consumers in the relevant market. Further, even where the court determines the likelihood of confusion is high, other considerations may make the imitation permissible.

Of course, recognizing imitation is the first step. You should contact an intellectual property law attorney who can help make sure you're either profiting from or preventing such imitation going forward.


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