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last revised Nov. 27, 2001

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Legal Analysis

Courts apply a mulit-factor test for determining a likelihood of confusion. Some of the factors are:

  • Distinctiveness
    • The more distinctiveness a mark, the greater the interest to be protected
  • Similarity of the marks
    • Must be sufficiently similar so that in the mind of consumers, so the junior mark will conjure an association with the senior
  • Proximity of the products and likelihood of bridging the gap
    • Closer the areas of commerce the more likely dilution will result from the use of similar marks
  • Shared consumers
    • If consumers who buy the products of the senior user never see the junior userís products or publicity, then those consumers will continue to perceive the senior userís mark as unique, notwithstanding the junior use
  • Sophistication of consumers
    • Consumers who are highly familiar with the particular market segment are less likely to be confused by similar marks and may discern quite subtle distinctions
  • Actual confusion
    • Consumer confusion would undoubtedly dilute the distinctive selling power of a trademark
AMF v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. Cal. 1979)

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