What does Likelihood of Confusion mean for a Trademark?

When a trademark is being used in commerce by one user and a second user begins using a similar trademark, the second user may be infringing on the trademark of the senior user if there is a likelihood of confusion between the trademarks. The Second Circuit set forth the test for determining whether there is a likelihood of confusion between two trademarks in Polaroid Corp. v. Polarad Electronics, Corp., 287 F.2d 492 (2d Cir. 1961). These factors are as follows:

strength of the trademark;
similarity of the marks;
proximity of the products and their competitiveness with one another;
evidence that the senior user may “bridge the gap” by developing a product for sale in the market of the alleged infringer’s product;
evidence of actual consumer confusion;
evidence that the imitative mark was adopted in bad faith;
respective quality of the products; and
sophistication of consumers in the relevant market.

Actual Confusion

Where a second user of the trademark acts in bad faith and intentionally copies a trademark or trade dress, a presumption arises that the copier has succeeded in causing confusion. See Paddington Corporation v. Attiki Importers & Distributors, 996 F.2d 577, 586 (2nd Cir. 1993) “actual confusion need not be shown to prevail under the Lanham Act, since actual confusion is very difficult to prove and the Act requires only a likelihood of confusion as to the source.” Savin Corp. v. Savin Grp., 391 F.3d 439, 459 (2d Cir. 2004) (quoting Lois Sportswear U.SA. Inc v. Levi Strauss & Company, 799 F.2d 867, 875 2d.Cir (1986).