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District Circuits

Fourth Circuit Likelihood of Confusion Factors

Fourth Circuit Likelihood of Confusion Factors

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Each of the thirteen federal courts of appeal have their own test for evaluating whether a likelihood of confusion exists between two trademarks. Although the tests are not identical, most of them are substantially similar and use many of the same factors. And the factors are non-exclusive.

The Fourth Circuit includes the following jurisdictions:

  • Maryland
  • North Carolina
  • South Carolina
  • Virginia
  • West Virginia

The Fourth Circuit considers Nine Pizzeria Uno / Sara Lee Factors in determining likelihood of confusion:

  1. The strength or distinctiveness of the plaintiff’s mark as actually used in the marketplace
  2. The similarity of the two marks to consumers
  3. The similarity of the goods or services that the marks identify
  4. The similarity of the facilities used by the markholders
  5. The similarity of advertising used by the markholders
  6. The defendant’s intent
  7. Actual confusion
  8. The quality of the defendant’s product; and (9) the sophistication of the consuming public

George & Co., LLC v. Imagination Entm’t Ltd., 575 F.3d 383, 393 (4th Cir. 2009). The first seven factors were set forth Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir. 1984).  The last two factors were added in Sara Lee Corp v. Kayser-Roth Corp., 81 F.3d 455, 463-64 (4th Cir. 1996).

Rhonda Harper MBA, Expert Witness

In the Fourth Circuit, Ms. Rhonda Harper has been retained in cases filed in the Middle District of North Carolina and the Eastern District of North Carolina Southern Division.

Retained by more than 140 law firms nationwide, Ms. Harper is courtroom proven in virtually every circuit along with JAMS and TTAB.  Her 30+ year career includes serving as a Fortune 100 chief marketing officer and an adjunct marketing professor. In addition to providing litigation consulting and research in the areas of business, licensing, marketing, advertising, in-store merchandising, and strategy, Ms. Harper is routinely retained to formulate expert surveys, conduct rebuttal critiques, or construct rebuttal surveys to show the potential difference in results with properly designed and executed surveys. She has extensive experience and a deep understanding of survey design, sampling, question construction, data analysis, and the methodological pitfalls that can introduce bias or systematic error.

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