When are two trademarks "confusingly similar"?
Whether a new trademark comes too close to yours isn't decided by gut feeling but by clear criteria. We explain them so you can judge for yourself when it gets serious.
It comes down to the interplay
Likelihood of confusion is an interplay of three factors: how similar the signs are, how similar the goods or services are, and how distinctive (well-known/original) your trademark is. If one factor is strong, the others may be weaker – and there is still a likelihood of confusion.
1. Similarity of signs on three levels
Trademarks are compared on three levels of perception: sound (how they sound when spoken), visual appearance (how they look in writing) and conceptual meaning (what they mean). Crucially: even a clear similarity on a single one of these levels can be enough for a likelihood of confusion – but it is always weighted and balanced against the other criteria.
The comparison is never word against word, side by side, but from the perspective of the public, who do not see the trademarks at the same time but judge them from memory.
The three levels of perception
Sound
How the word marks sound when spoken (vowel sequence, syllables, rhythm).
Visual appearance
How they look in writing (letters, length, shape).
Conceptual meaning
What they mean (concept, idea, translation).
2. Similarity of goods and services
A trademark is always protected for specific classes of goods and services. Likelihood of confusion requires that the offerings are at least close. Two identical names in completely unrelated industries can coexist – the same name in the same market, however, hardly ever.
3. Distinctiveness – strong trademarks are better protected
The more original and well-known your trademark, the greater its scope of protection. A strong, well-established trademark can also fend off more distant signs, while a descriptive, weak trademark enjoys less protection. Fame is therefore not only a marketing advantage but also a legal one.
The imperfect memory image
The assessment is made from the memory of an averagely attentive public. In the gold bunny case, the Federal Supreme Court held that consumers could not tell the shapes apart in their memory – precisely this established the likelihood of confusion.
Examples from practice
Despite the different spelling, the signs were judged highly similar in sound.
The lesson: Sound alone can be decisive.
BPatG, 24 W (pat) 37/08, 2009
Different languages, identical conceptual content – this can establish a conceptual likelihood of confusion.
The lesson: Meaning counts too, not just sound and spelling.
Trademark law teaching example
Decisive was the overall impression from memory – not the detailed comparison.
The lesson: Overall impression beats detail.
Federal Supreme Court, 4A_587/2021, 2022
The types of similarity in detail
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This article is for information and does not constitute legal advice.