Harper Litigation Consulting and Research : 214-244-4608

Six Levels of Consumer Confusion

Likelihood of Confusion

Origin, Sponsorship, Approval, Association, Affiliation, and Connection

  • The Lanham Act clearly spells out when a trademark has been infringed. Specifically, it says:
  • Any person who, or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which:
    • is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services , or commercial activities by another person, or
    • in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods receives, or commercial actives, shall be liable in a civil action any any person who believes that he or she is likely to be damaged by such act.

Among the three conditions -- mistake, deception, and confusion -- confusion is the most common type of litigation. Scientifically designed research, specifically, Likelihood of Confusion surveys, are held in high esteem by the courts and have both widespread acceptance and influence in trademark infringement cases. While courts instruct that surveys are not essential, some state that they are the most direct method of showing likelihood of confusion.

There are six ways in which likelihood of confusion can manifest itself (see below.) Most Likelihood of Confusion surveys ask survey respondents whether each, or some, of these apply in the case being litigated. Current research and expert opinions have provided a review of these six ways. Specifically, the terms suggest an order of importance, from Origin to Connection, based on consumer perceptions regarding the strength of the tie to the allegedly infringed trademark.

  1. Origin - Origin suggests an equivalency with the allegedly infringing trademark. If both come from the same source, they would likely be perceived as parity products.
  2. Sponsorship - Sponsorship suggests an active involvement with the allegedly infringing trademark. It would take an action to advocate or sponsor the junior mark.
  3. Approval - Approval suggests a passive involvement with the allegedly infringing mark. The senior mark holder would simply allow the junior mark to exist.
  4. Association - Association suggests that the senior mark and junior mark holders are joining forces in one way or another for combined or mutual benefit.
  5. Affiliation - Affiliation suggests that the two entities have some intential, but weak, relationship.
  6. Connection - Connection suggests that there is a link of some sort that joins the two together.