Introduction: The Likelihood of Confusion

Confusion is the lynchpin of trade mark law. As a cause of action, it has something to offer everyone: trade mark owners are protected from those trying to reap the benefits of their investment in their mark and brand, the public interest is served because consumers are protected from making mistaken purchasing decisions, and consequently, a differentiated market for goods and services can operate. The prevention of confusion also has intuitive appeal. We have all been confused; policymakers, judges, academics, practitioners, and members of the public alike. Indeed, we have probably all made erroneous decisions in the marketplace. Yet, despite (or perhaps because of) the ease with which likely confusion provides the traditional rationale for trade mark protection, it is under-analysed and under-studied. In particular, it is our belief that the very intuitiveness of confusion has resulted in little systematic analysis considering the exact ingredients that make up a claim of confusion.