As long as we are talking about it...
The Polaroid Factors
When determining likelihood of confusion, courts use several factors derived from a 1961 case. (Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961).) These factors, sometimes known as the “Polaroid factors,” may vary slightly as federal courts apply them throughout the country. The factors are intended as a guide, and not all factors may be particularly helpful in any given case.
- Strength of the senior user’s mark. The stronger or more distinctive the senior user’s mark, the more likely the confusion.
- Similarity of the marks. The more similarity between the two marks, the more likely the confusion.
- Similarity of the products or services. The more that the senior and junior user’s goods or services are related, the more likely the confusion.
- Likelihood that the senior user will bridge the gap. If it is probable that the senior user will expand into the junior user’s product area, the more likely there will be confusion.
- The junior user’s intent in adopting the mark. If the junior user adopted the mark in bad faith, confusion is more likely.
- Evidence of actual confusion. Proof of consumer confusion is not required, but when the trademark owner can show that the average reasonably prudent consumer is confused, it is powerful evidence of infringement.
- Sophistication of the buyers. The less sophisticated the purchaser, the more likely the confusion.
- Quality of the junior user’s products or services. In some cases, the lesser the quality of the junior user’s goods, the more harm is likely from consumer confusion.
- related products and services.
