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Is Your Trademark Likely to Cause Confusion? The Lapp Test

In order to establish trademark infringement, a party must demonstrate (a) the trademarks are valid and legally protectable; (b) the trademarks are owned by the plaintiff; and (c) the defendant’s use of the trademark is likely to cause confusion concerning the origin of the goods and services. In a recent decision, the District Court of New Jersey denied a plaintiff’s application for a preliminary injunction relating to causes of action for trademark infringement, trade dress infringement and false designation of origin and unfair competition, all under the Lanham Act, due to the plaintiff’s failure to adequately address the “likelihood of confusion” analysis under the Lapp test.

What Is The Lapp Test?

The Third Circuit determines whether a trademark is likely to cause confusion with another trademark utilizing a ten factor test (the “Lapp test”) which factors include:

  1. The degree of similarity between the trademarks;
  2. The strength of the owner’s trademark;
  3. How careful consumers will be to make a purchasing decision (expense of product, etc.);
  4. The length of time defendant used the trademark without causing confusion;
  5. The intent of the defendant in adopting the trademark;
  6. Evidence of actual confusion;
  7. Whether goods are marketed through same trade channels;
  8. Similarity of target market;
  9. Relationship of goods in the minds of consumers; and
  10. Other factors concerning whether owner of the mark would sell both products.

How Is The Lapp Test Applied?

A plaintiff does not have to prove all ten factors. The courts will use the Lapp factors as a guide of sorts to the likelihood of confusion analysis.

Why Is The Lapp Test Important To Your Organization?

There are a number of reasons why you need to be cognizant of the Lapp test factors as they relate to your organization and competitors. The most important reason why you need to know of the Lapp test factors is litigation avoidance. When choosing your brand at the outset, you or a qualified attorney should analyze your brand as it may relate to your competitors or other organizations. If you believe that your mark may be likely to cause confusion with another trademark, you may want to come up with some other options. Additionally, it is important to know what the courts will look to if you believe that another organization’s mark is confusingly similar to yours before you initiate an action for trademark infringement. Finally, if you do decide to bring an action for trademark/trade dress infringement or similar claims under the Lanham Act, you must be sure that your attorney specifically pleads likelihood of confusion in your papers to avoid dismissal of the claim and denial of your injunctive relief.

Contact us now to discuss your trademark matter with a skilled lawyer at The Internicola Law Firm, P.C.

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