Similarity of Goods and Services

Abstract

An action lies for likelihood of confusion where the parties’ goods are either identical or similar. Generally, it is relatively straightforward to ascertain whether goods or services are identical, and even if it is not, there is always the fallback of arguing that the goods are similar. Therefore, this chapter concentrates on how similarity of goods can be demonstrated. Although the assessment of similarity of goods is arguably more straightforward than that for similarity of marks, it nevertheless involves an assessment and balancing of a number of factors which may suggest contradictory outcomes. Unlike similarity of marks, not every factor is considered in every case, and in many cases just a couple of the factors are considered, adding a degree of unpredictability to the test. A potential added complication is that, in line with the global appreciation approach to assessing likelihood of confusion, the degree of similarity of goods required in any one case should depend on the level of similarity of marks and the distinctiveness of the senior marks.