Assessing Likelihood of Confusion

The likelihood of confusion test is inextricably linked to the principal justification for trade mark protection. If the essential function of a trade mark is to reliably indicate the commercial origin of a product in the marketplace, an action to prevent confusion amongst consumers, thereby impeding this origin indicating ability, is a necessary corollary. The language of Article 5(1)(b) (relative grounds) and Article 10(2)(b) (infringement) of the Trade Marks Directive 2015 (TMD 2015) indicates that the proprietor has the right to prevent a junior user from registering or using a mark where ‘because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public; the likelihood of confusion includes the likelihood of association with the earlier trade mark’.