Likelihood of confusion
Trade Mark Law

Where a likelihood of confusion arises in the intended use or use of a trade mark with reference to an earlier registered trade mark, infringement will occur. The test is also applied in opposition proceedings and a likelihood of confusion will prevent registration of the trade mark.

Comparison of the Trademarks

The general principles are that a the marks are assessed as a whole, with reference to the visual, aural and conceptual similarity between the marks with reference to the relative importance of each of those differences and similarities. The markets in which the marks would appear are taken into account having regard for the normal and fair use of the marks, and the goods and/or services nominated within the trade mark specifications. The viewpoint is that of an ordinary consumer who is reasonably well informed and observant.

A likelihood of confusion will arise when, on a global consideration of all the relevant factors (above), the trade marks are considered identical or similar having regard to the goods or services set out in the trade mark specification.

It is not enough that confusion is caused by factors external to the trade marks. The reputation of the earlier marks is also taken into account, and may lessen the degree of similarity required but does not negate it.