Trademark Surveys: Confusion

Abstract

United States trademark law is tailored after British common law. The original function of the trademark was twofold. First, the trademark was seen as a means of identification for illiterate shipping clerks. Second, if a product was found defective, the trademark would enable the consumer to trace the product to its manufacturer. As such, the trademark protected the consumer. United States trademark laws recognize this function of the trademark. The notion of consumer protection led to laws that would ensure that trademarks could not be confused as to their source of origin.¹ The law protects the owner of a trademark (the “senior user”) against the use of any other trademark that is likely to be confused with the original mark.² The protection extends not only to the brand name and its design, but also to the “trade dress” — the packaging and presentation features that are unique to the mark.³