In the United States,
the key is determining whether there is a likelihood of confusion. In other
words, are consumers likely to believe that the goods are made by the same
person. Similarity of the marks is just one factor. Another important factor is
the relatedness of the goods. If the goods are wine, for example, and you want
to use a similar mark on a wine, then there would be a greater likelihood of
confusion. If, however, the goods are orthopedic shoe inserts, then the
likelihood of confusion is greatly reduced because few people would think that
a winery made orthotics.
There is an exception
for famous marks because they are so strong. For example, if you saw a bar of
APPLE soap, you might not think that APPLE has gone into the soap business, but
you might think of Apple computers or products. That is called “trademark
dilution” because it is likely to diminish the value of the APPLE trademark. In
that case, likelihood of confusion has nothing to do with the analysis.
