What are the du Pont Factors?
When courts are considering whether or not two trademarks (or applications) are “confusingly similar,” courts use anywhere from 7 to 13 factors in their analysis. The most referenced set of factors are the 13 “du Pont Factors” stemming from In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).
Those factors are as follows:
The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression.
The similarity or dissimilarity and nature of the goods . . . described in an application or registration or in connection with which a prior mark is in use.
The similarity or dissimilarity of established, likely-to-continue trade channels.
The conditions under which and buyers to whom sales are made, i.e. "impulse" vs. careful, sophisticated purchasing.
The fame of the prior mark.
The number and nature of similar marks in use on similar goods.
The nature and extent of any actual confusion.
The length of time during and the conditions under which there has been concurrent use without evidence of actual confusion.
The variety of goods on which a mark is or is not used.
The market interface between the applicant and the owner of a prior mark.
The extent to which applicant has a right to exclude others from use of its mark on its goods.
The extent of potential confusion.
Any other established fact probative of the effect of use.
The du Pont court went on to state that not all factors are given equal weight in an analysis, and that one factor may be more controlling than the rest of the factors depending on the particular case. This is to mean that a prior marks fame, on its own, could lead to a finding of likelihood of confusion even if the remaining factors would indicate otherwise.
Why does this matter to me?
You want to consider this BEFORE you file a trademark application or select a final name for your business. Failure to do so CAN lead to higher costs related to your application, or the need to completely change your name/brand identity later down the line. To learn more about the basics of Trademarks, click here for our blog on the topic.