The factors are about the defendant’s use of the trademark and its use to likely cause confusion about the source of the plaintiff’s or the defendant’s goods.
There are many factors. From my reading and study (including Trademarks/Infringement/Likelihood of Confusion/Factors/Sleekcraft Test), here are eight factors:
- Strength or Weakness of the Plaintiff’s Mark on the products/goods/services. The more the consuming public ("People," buyers recognize the plaintiff’s trademark as an indication of origin of the plaintiff’s goods, the more likely it is that consumers would be confused about the source of the defendant’s goods if the defendant uses a similar mark.
- The Defendant’s Use of the Mark. If the defendant and plaintiff use their trademarks on the same, related, or complementary kinds of goods ("Product," under the 9P's of Marketing), there may be a greater likelihood of confusion about the source of the goods than otherwise.
- Plaintiff’s and Defendant’s Marks. If the overall impression created by the plaintiff’s trademark in the marketplace is similar to that created by the defendant’s trademark in appearance, meaning, sound, there is a greater chance that the "People" or buyers/consumers are likely to be confused (likelihood of confusion) by defendant’s use of a mark. Look for similarities as well as differences in appearance, sound or meaning. Similarities will weigh more heavily than differences in finding the marks are similar.
- Actual Confusion. If use by the defendant of the plaintiff’s trademark has led to instances of actual confusion, this strongly suggests a likelihood of confusion.
- It can be noted that actual confusion is not required for a finding of likelihood of confusion. Even if actual confusion did not occur, the defendant’s use of the trademark may still be likely to cause confusion. If the instances of actual confusion have been relatively frequent, you may find that there has been substantial actual confusion.
similar goods may strongly show an intent to derive benefit from the reputation of the
plaintiff’s mark, suggesting an intent to cause a likelihood of confusion. On the other
hand, even in the absence of proof that the defendant acted knowingly, the use of
plaintiff’s trademark to identify similar goods may indicate a likelihood of confusion.
6. Marketing/Advertising Channels. If the plaintiff’s and defendant’s good or service
(Product or Services , one of the 9P's of Marketing) are likely to be sold in the same
or similar stores or outlets (under "Place," in the 9P's of Marketing), or advertised in
similar media (under advertising, one of the eight (8) elements in "Promotion," in the
9P's of Marketing), this may increase the likelihood of confusion.
7. Consumer’s Degree of Care. The more sophisticated the potential buyers ("People,"
under the 9P's of Marketing) of the goods or the more costly the goods ("Price"), the
more careful and discriminating the reasonable purchaser ordinary caution may be.
They may be less likely to be confused by similarities in the plaintiff’s and defendant’s
trademarks.
8. Product Line Expansion (Under "Product or product line, under the 9P's of Marketing)
When the two products differ, consider how likely the plaintiff is to begin selling the
products for which the defendant is using the plaintiff’s trademark. If there is a strong
possibility of expanding into the other party’s market, there is a greater likelihood of
confusion.
If is a very large volume of sales, but only a few isolated instances of actual confusion it may found that there has not been substantial actual confusion.
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I am a senior Forensic Marketing Expert, Advertising/Marketing consultant with Londre Marketing Consultants, LLC plus I teach Marketing and Advertising.
I own a copyright for this concept, the Nine P’s/9 P's of Marketing ©2007, which augments the Marketing Mix (Product, Price, Promotion and Place) or the 4P’s by the American Marketing Association, Neil Borden and Jerome McCarthy in the study and practices of Marketing.
The Nine P's/9P's of Marketing help identify marketing problems and opportunities in a number of areas and help develop marketing’s objectives, strategies, tactics and solutions. The Nine P's can be insightful.
In Marketing. the "Customer," or potential customers are king, but are missing in the 4P's.
I consult and teach using the Marketing concepts and practices of the Nine P's/9P's of Marketing.
In the study and practice of Marketing, Marketing and Brand Managers develop plans, strategies and tactics.
The Nine P's of Marketing include these important components or elements:
- Planning
- People
- It's about Segmentation and Targeting.
- "People" or targeting has almost always been left out of the traditional "Marketing Mix." Almost every diagram includes the four P's with "Consumer" or "People" or "Potential Buyers" in the middle of the circle. There needs to be more focus on the "Customer," or "People."
- "People," market segments utilizing demographics, geographics, psychographics, behavioral characteristics and technographics are a vital component of the 9P's of Marketing. Once a target market is chosen, the organization can develop its marketing strategies to target this market segment.
- Product and Services
- Place (Distribution)
- Price
- Promotion:
- Eight (8) major, strategic components: The communication elements include personal and non-personal communication activities. Activities that communicate the merits of the overall product, which include:
- Personal Selling/ Sales Force
- Advertising
- Sales Promotion
- Collateral Materials
- Direct Marketing (also referred to as Action or Direct Response Advertising
- Interactive/Internet/Web, Digital Media, Social Media
- Events and Experiences-
- Public Relations
- Strategic questions under Promotion::
- What should you promote?
- To whom should you promote?
- What economic and discount levels should you offer?
- What form of promotion should you offer? Features?
- How frequent?
- Partners:
- It is important to partner with firms that have similar corporate philosophies, who have agreed upon objectives and strategies.
- Presentation:
- The “P” or “Presentation” is the act of presenting any of the different 9P’s© and/or components to your customers, suppliers, wholesalers, retailers, sales force, marketing intermediaries, clients, employees, partners, and/or others.
- Look at “real” product and service experiences. I place “events and experiences” also under Promotion. While traditional marketing is based on target audience impressions/ views/ clicks/ exposure, experimental marketing involves engaging with consumers. Enabling consumers and “allowing” them to feel the brand.
- Passion:
- Those intense, driving or overmastering feelings, emotions in the planning, developing, pricing, promoting, partnering, selling and overall marketing of products or services.
Or for more fun, marketing strategies/tactics and facts: Go to Marketing Trivia with 37+ stimulating questions and answers at Londre MarketingConsultants, LLC. Here to help. All the best.
