A Tale of Confusion: How Tribunals Treat the Presence and Absence of Evidence of Actual Confusion in Trade Mark Matters

Abstract

In determining whether two trade marks are likely to cause confusion or deception tribunals consider a number of factors. Two important ones are the presence or absence of evidence of actual confusion. With the presence of such evidence tribunals are more willing to find a likelihood of confusion. With the absence of such evidence tribunals are more willing to find no likelihood of confusion. However, contrary authority exists for both propositions. This article suggests a
framework for examining both the presence and absence of actual confusion evidence. It argues that only after closely examining the circumstances of each case should a tribunal regard the presence or absence of actual confusion evidence as probative.