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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


Rhonda Harper Expert Witness

In the Fourth Circuit, 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 100+ law firms since 2005, Ms. Harper is courtroom proven. She has been engaged to provide 65+ surveys, 80+ reports, 30+ rebuttals, 45+ depositions, and serve in 20+ trials. She has provided services to both Plaintiffs (60%) and Defendants (40%) across trademark and trade dress, packaging, merchandising, defamation, licensing, breach of contract, advertising, and commercial reasonableness. She has provided services in virtually every Circuit as well as JAMS and TTAB.

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 methodological pitfalls that introduce bias or systematic error.

Ms. Harper's 30+ year career includes serving as a Fortune 100 Chief Marketing Officer. Having authored two books, she is a former Adjunct MBA Marketing Professor.

Call today for a free case review and estimate: 214-244-4608.

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