What is the definition of “likelihood of confusion” in trademark infringement?
In South Dakota, the definition of “likelihood of confusion” in trademark infringement is when the use of a mark is likely to cause confusion, mistake or deception as to the source, origin, sponsorship, or approval of goods or services. The courts consider a variety of factors such as the similarity between the marks, the similarity of the goods or services, the strength of the mark, and the sophistication of the consumers. When evaluating a likelihood of confusion, the court looks at the overall impression created by the use of the mark rather than the differences between them. When seeking a trademark infringement, the Plaintiff must show a likelihood of confusion by providing evidence and reasonable arguments that the parties’ marks are confusingly similar. The court will also consider the distinctiveness of the mark, the similarity between the goods and/or services, the relatedness of the goods and/or services, the marketing channels, the area and manner of concurrent use, actual confusion, the intent of the infringer, and any other factor that could cause confusion. Overall, the court must be satisfied that there is a substantial likelihood of confusion when deciding upon a trademark infringement. The likelihood of confusion as it relates to trademark infringement is an issue of fact and will be decided by a court based on the facts and evidence at hand.
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