In this episode, we continue with trademark infringement, this time discussing the "consumer care" factor. Bill Groh is a partner with LMB Partners with offices in Denver and Golden, Colorado. For more information, see https://www.lawmeetsbusiness.com/groh-william TRANSCRIPT: This is Bill Groh and welcome to 90 Second Legal. This is part of the multi-part series on trademark infringement or the likelihood of consumer confusion. Today we're going to talk about consumer care. Now, since trademark infringement is at its core about whether consumers get confused, courts are going to pay attention to how careful consumers of particular products or services actually are. Courts assess consumer care by asking how careful a consumer of a particular product or service is going to be in making sure that they are buying the brand they think they're buying. Generally, the more expensive the product and the more essential the goods or services, the more careful the consumer will be. Let's consider a product like bubblegum. There are a lot of brands, small differences between them. It's not expensive and it's a very dispensable product. If you buy a pack of gum you don't like, it's not that big a deal. The average consumer isn't going to pay that much attention to which brand of bubble gum they are buying. Consumer care in this particular industry is going to be low. Now, something on the opposite end of the spectrum would be a high value product or service like a luxury car or a medical treatment. You're spending a lot of money or it's an important transaction. The average consumer in that situation is going to take more time to make sure that they are really buying what they think they are buying. The consequences of going to the wrong doctor are potentially a lot greater than buying the wrong bubblegum for that reason. The higher the consumer care, the less likelihood of consumer confusion. That said, remember, the consumer care is just one of several factors in determining consumer confusion and potentially trademark infringement. So, you can still have consumer confusion, even if consumer care is high. For more information, check out the links below and click that subscribe button for more 90 Second Legal content.

In this episode, we continue with trademark infringement, this time discussing the "product similarity" factor. Bill Groh is a partner with LMB Partners with offices in Denver and Golden, Colorado. For more information, see https://www.lawmeetsbusiness.com/groh-william TRANSCRIPT: This is Bill Groh and welcome to Ninety Second Legal. This is part of a multi-part series discussing different factors the courts use to test whether trademark infringement is occurring or if there's a likelihood of consumer confusion. Today we are going to focus on the product similarity prong. The more similar the product, the more likely consumers are to be confused. But what do courts specifically consider when they evaluate this factor? One issue is whether the marks in question are advertised in similar markets to similar classes of consumers. For example, if a product or service is advertised to a niche market, that may be less likely to get confused with a product that is just marketed to the general public as a whole. Another issue is whether the marks are marketed in similar channels. Are the products showing up in the same stores? Do they both run ads on Facebook or Google or on tv? The more the marketing strategies and channels overlap, the more it will be a source of potential confusion. Finally, however, we have product similarity itself. Now, obviously, marketing very similar products with very similar marks will be a potential source of confusion. However. That does not mean that marketing a completely different product alone will prevent a trademark infringement claim, especially if the infringed mark is well-known and the advertising falsely suggests an affiliation with a well-known brand. For more information, check out the links below and click that subscribe button for more Ninety Second Legal content.

This episode contines our multi-part series on trademark infringement. Bill Groh is a partner with LMB Partners with offices in Denver and Golden, Colorado. For more information, see https://www.lawmeetsbusiness.com/groh-william TRANSCRIPT: This is Bill Groh and welcome to Ninety Second Legal. This is part of a multi-part series discussing different factors the courts use to test whether trademark infringement is occurring or if there's a likelihood of consumer confusion. Now, today we are going to talk about mark similarity. This may seem like one of the more obvious factors courts will use to determine infringement. It would seem that the marks are either similar or they aren't, but there are some tricks to it. Courts evaluate similarity by examining three things, sight, sound, and meaning. They don't consider the individual components of the marks. Instead, they try to look at the marks holistically and in a way that an ordinary consumer in the marketplace would actually encounter those marks. So if there are two marks which have a common or similar component, like say "Peak Logic" or "Peaks Computing," the court won't just focus on whether "Peaks" and "Peak" are similar. The court will consider whether "Peak Logic" is similar to "Peaks Computing". Now, this means that two different trademarks could have a similar syllable or word or component, but the marks as a whole could mean something very different, or they could sound or look different enough so that that one common component doesn't end up mattering that much. Now remember, mark similarity is considered along with other factors, so strong or weak mark similarity won't necessarily make or break a claim for actual confusion. For more information, check out the links below and click that subscribe button for more Ninety Second Legal content.

This is the first part of a multi-part series dealing with the ins and outs of likelihood of confusion and trademark infringement. TRANSCRIPT: This is Bill Groh and welcome to 90 Second Legal. This is part one of a series discussing different factors the courts use to evaluate whether trademark infringement is occurring or if there is a likelihood of consumer confusion. Courts figure this out using several factors, which they will weigh differently depending on the situation. Today we're gonna discuss the first and most obvious factor, actual confusion or whether consumers are actually getting confused. Courts usually give this the most weight, and it's easy to see why. If consumers are mistaking one trademark for another, that's good evidence that the marks are confusingly similar. Now proving trademark infringement by showing consumer confusion has to involve more than a few anecdotal examples. Showing that it happened once or twice is generally not going to do it, especially if the mark and the infringing mark have been around for a while. The longer the marks have been used in the same market, the more courts will wanna see evidence of actual confusion. Sometimes you have situations where one mark is just entering a marketplace or hasn't really taken off yet, so there hasn't been enough opportunity for consumers to get confused in those situations. You can use survey evidence. This is generally expensive and it involves hiring a survey expert. They try to present the marks to the type of consumer who may buy the product or service, and then evaluate how often the survey participants are actually getting confused. Now, for this type of evidence to work, the survey expert's methodology has to be sound enough for a court to accept it. That makes this a more expensive option, but it can lead to compelling evidence of actual confusion in circumstances where the marks haven't been at odds long enough for that to have happened naturally. For more information, check out the links below and click that subscribe button for more 90 Second Legal content.