Confusing similarity

In trademark law, confusing similarity is a test used during the examination process to determine whether a trademark conflicts with another, earlier mark, and also in trademark infringement proceedings to determine whether the use of a mark infringes a registered trademark.

In many jurisdictions this test has been superseded by the concepts of similarity and likelihood of confusion, due to the harmonizing effects of the Agreement on Trade-Related Aspects of Intellectual Property Rights.

Where mark X is not identical to a registered trademark, the use of mark X may still amount to an infringement if it is "confusingly similar" to the registered trademark. Mark X may share elements of spelling or style that would lead a reasonable observer to believe the trademarks were related.

For example, in the computer industry, Microsoft has become such a well known trade name and trade mark that other businesses in the industry may want to use the term "micro" or "soft" in their names. As Microsoft generally does not hold exclusive rights in these terms, it would need to establish that any trade names or trademarks which include these terms is confusingly similar to "Microsoft". The reputation attaching to a trademark is also significant, such that "Microsafe" or "Micro Software", although clearly not identical, could potentially be confusingly similar and amount to an infringement.

In addition, the style of a trade mark, such as a logo or font, can become relevant. For example, Microsoft products are distinguished in the marketplace by a consistent font. Competitors may not use the same font on their product, particularly when using a name which would not be confusingly similar except for the use of the font. For example, a brand called "Microsystems" would most likely not be confused with Microsoft. However if Microsystems used the same font as Microsoft, it would be confusingly similar. Some styles, like the script used on Coca-Cola products, are so well known that even a completely different name in a similar script could be held to be confusingly similar.

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