For companies engaged in trademark enforcement, one of the most common hurdles in litigation is proving likelihood of confusion. It’s the cornerstone of most trademark infringement claims—but as commerce and branding shift to the digital space, courts and litigants alike are grappling with how to apply this traditional standard to a new landscape.
What Is Likelihood of Confusion?
In trademark litigation, “likelihood of confusion” means that consumers are likely to believe that two products or services come from the same source—or that one is affiliated with, sponsored by, or endorsed by the other. Courts weigh multiple factors, such as the similarity of the marks, the similarity of the goods or services, and the strength of the plaintiff’s mark.
But in an era of search engines, social media, influencer marketing, and algorithm-driven advertising, confusion can occur in ways courts never contemplated decades ago.
Emerging Issues in Today’s Courts
1. Initial Interest Confusion: A user may briefly believe there’s a connection between two brands based on a search result or social media post—even if that belief is corrected before a purchase is made. Courts are split on whether this momentary confusion is enough to support a claim.
2. Keyword Advertising and SEO: Can bidding on a competitor’s name in Google Ads or using a competitor’s brand as a hidden keyword amount to infringement? Courts vary in their analysis. The Ninth Circuit has been more skeptical, while others view it as potentially actionable.
3. Social Media Handles and Usernames: A username that incorporates a competitor’s mark, even if not used to sell directly, may trigger confusion—especially if it creates the appearance of endorsement or affiliation.
4. Influencer and Affiliate Marketing: When third parties promote products using trademarked terms or similar branding, the question becomes whether their conduct can be imputed to the company, and whether consumers are likely to be misled by “sponsored” content.
Key Takeaways for Brand Owners
• Document actual confusion. Screen captures, consumer complaints, or even analytics data can help demonstrate how your audience is being misled.
• Monitor digital use aggressively. Infringement today often starts with a hashtag, handle, or domain name—regular brand monitoring is essential.
• Tailor litigation strategy to the platform. What works in Amazon infringement cases might differ from YouTube or Instagram-related confusion.
Final Thoughts
As trademark law adapts to a digital-first marketplace, likelihood of confusion will remain a battleground issue. Success in litigation increasingly depends on a nuanced understanding of how consumers behave online—and how courts are interpreting that behavior.
If your business is facing digital brand threats, or if you need help assessing the strength of a trademark infringement claim, our firm can help you navigate the evolving legal landscape.
