Liability for trademark infringement hinges upon whether a likelihood of confusion exists between the parties’ marks. The court must consider whether a likelihood of confusion exists in the minds of potential consumers of ordinary intelligence as to the source, affiliation or sponsorship of the goods or services provided. The focus of the court’s confusion analysis is not on the businesses that own the marks, but on the consumers who encounter the marks in the marketplace and how those marks are perceived. In this respect, trademark law is primarily a consumer-protection statute.
In determining whether a likelihood of confusion exists, the 5th U.S. Circuit Court of Appeals in Conan Properties Inc. v. Conans Pizza Inc. (1985) set forth a non-exhaustive list of factors to be considered, including the type of trademark allegedly infringed; the similarity between the two marks; the similarity of the products or services; the identity of the retail outlets and purchasers; the identity of the advertising media used; the defendant’s intent; and any evidence of actual confusion.
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