After you have chosen a trademark to identify your goods and services and your customers associate your products with your name, the presence of a similar trademark may threaten the brand loyalty you have successfully built. When a competitor starts a using a similar trademark, you must be able to prove that the competitor is infringing upon your trademark to compel discontinuation of its use.

To determine infringement, the courts evaluate whether consumers are likely to be confused as to the source of the products or services in question. If the claimant can demonstrate actual confusion, then this may constitute persuasive evidence of the possibility of future confusion. When applying trademark law to the internet, evidence from search results and comments is typically admissible and is germane when it provides information on a customer’s state of confusion. However, given the challenges that internet comments pose in trademark law, courts generally assess multiple factors in deciding proof of confusion for internet based comments.

Do typos or misspellings show actual evidence of confusion? Because comments on the internet are made by anonymous users, it is difficult to assess the intention or meaning of the comments. Misspellings can result either from words that are closely related or similar in appearance or from the user making an error in spelling. The courts may not be able to determine whether a misspelling of a competitor’s product is really attributable to actual confusion about the source of the product by the customers. In many cases, the courts have found a cause of action in claims based on the initial confusion of internet users who wind up on a site other than the one they had been searching for.

Is there widespread confusion? The quantity of “confused consumers” may be indicative of the likelihood that consumers will fail to identify the product with the source. Thus, if only a small percentage of users register confusion, then this would suggest that the majority of the public is not prone to be confused.

What is the source of the comments?  The courts look to the population of potential users of the product, rather than the general public, to assess the likelihood of confusion. In addition, comments on the internet from users in other countries have been found to be irrelevant to the inquiry since these users were presumably not familiar with the market conditions for these products in the United States.

Contact Shane Coons at 949-333-0900 or visit his website at www.ShaneCoonsLaw.com to find out more about his practice.