More formally known as Likelihood of Confusion, the standard doesn’t require marks to be identical to indicate infringement. Rather, similarity in the sound, meaning, or appearance of a mark may be ample grounds for alleging infringement and/or refusing registration. Further, likelihood of confusion increases when the product or service and the marks are so similar that a consumer may be lead to believe they come from the same source.
According to the US Patent and Trademark Office, “one of the most common reasons for refusing registration is that a “likelihood of confusion” exists between the mark in the application and a previously registered mark or a pending application with an earlier filing date owned by another party.“
In one recent example, YETI, an Austin-based brand and maker of coolers and other outdoor equipment, unleashed a flurry of complaints against rival RTIC, also a brother-run company based out of Texas. The complaints include trade dress and trademark infringement, unfair competition and false designation of origin, false advertising, and trade dress dilution, among others.
Photos from court documents for case number 1:15-cv-00597-RP are shown below. One could certainly appreciate how these coolers may be difficult to distinguish at first glance, leaving unsuspecting campers at risk for pulling a beer, or a trout, from the wrong cooler. You be the judge:
Lawyers for YETI claimed that “the designs of the Roadie and Tundra coolers have distinctive and non-functional features that identify to consumers that the origin of the coolers is YETI,” and that “RTIC has advertised, offered for sale, and sold, and continues to advertise and offer for sale, coolers that infringe on YETI’s rights, including the rights protected by YETI’s intellectual property.” The case settled earlier this month in favor of YETI, who successfully managed to shake RTIC from their coat tails, at least for now.
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