Likely to be Confusing: The Sight, Sound, and Meaning Test

American trademark law protects the owner of a trademark from any person or company who uses a mark that is similar to theirs. The test used to determine how similar two marks are is called the “Likelihood of Confusion” test, and is very much likely to be confusing in and of itself! What an individual or business owner needs to know is that its mark CANNOT be likely to confuse a consumer, or else they face failure in registering their mark and/or being sued for infringing on someone else’s existing mark. It is such a loaded concept, that it gets its own category for blog posts, as many complexities lurk beneath the deceptively simple title.

Know the “sight, sound, and meaning” test, typically applied to word marks (as opposed to artistic marks such as logos). The law will look at two marks, and compare them based on how they look, how they sound, and their meanings, to determine whether consumers would be confused between the two marks.

  • Sight. Look at the two words. Words can be spelled differently, but still look the same: OfficeMax and Off1ceMax; Logitech and Logit3ch; NextSpace and NexPace. These examples would likely fail the “sight” test.
  • Sound. Say the words aloud. Do they sound different? Think: Maldonado Ergonomics and Avocado Economics; S-Prie and Espirit; Cisco and Sysco. These examples would likely fail the “sound” test.
  • Meaning. Do the meanings of the words conjure up similar thoughts or imagery? Think: Tornado Laundry and Cyclone Laundry; Jaguar Auto and Cheetah Auto; Oranges & Lemons Market and Citrus Grocers. These examples would likely fail the “meaning” test.

While failing any one of sight/sound/meaning test does not lead to an automatic Likelihood of Confusion finding…it could. This is why it is useful to have proposed names vetted by a trademark lawyer before investing significant time and energy into your company name and/or mark.

 

– ck

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