Definition[edit | edit source]

Consumer confusion, in relation to trademark infringement and unfair competition, is an element used to determine if two trademarks are so similar as to confuse customers as to the ownership or sponsorship of a good or service.[1] Consumer confusion can occur if there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.[2]

Applicable test[edit | edit source]

Consumer confusion is analyzed under the Polaroid test, which is an eight-factor balancing test introduced in Polaroid Corp. v. Polarad Elecs. Corp.[3] The eight factors are:

(1) strength of the trademark;
(2) similarity of the marks;
(3) proximity of the products and their competitiveness with one another;
(4) evidence that the senior user may "bridge the gap" by developing a product for sale in the market of the alleged infringer's product;
(5) evidence of actual consumer confusion;
(6) evidence that the imitative mark was adopted in bad faith;
(7) respective quality of the products; and
(8) sophistication of consumers in the relevant market.

References[edit | edit source]

  1. Starbucks Corp. v. Wolfe's Borough Coffee, Inc., 588 F.3d 97, 114 (2d Cir. 2009) (full-text).
  2. Star Indus., Inc. v. Bacardi & Co. Ltd., 412 F.3d 373, 384 (2d Cir. 2005) (full-text).
  3. 287 F.2d 492 (2d Cir. 1961) (full-text).
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