Trademark Likelihood of Confusion, in Triathlon Products
Today, a basic primer on trademark infringement and an example of something that seems pretty clear. A registered trademark gives the owner the right to prevent anyone from using a mark in a way that is likely to cause confusion. This “likelihood of confusion” is fleshed out in a multi-factor analysis of the similarity of the marks, the products, the channels of commerce, and other aspects of the use.
Importantly, a likelihood of confusion analysis is not solely based on whether two marks have a similar name or appearance. The strength of the registered mark, the similarity of the goods or services on which the marks are used, the similarity in the sight, sound and meaning of the marks, evidence of actual confusion, the similarity of the channels through which the products or services are marketed, the sophistication of the consumers and their ability to distinguish between two marks, intent of the other party, and the likelihood of market expansion by the parties are all considered. However, frequently, the two most important factors in the analysis are: 1) the similatiry of the marks, in sight, sound, and appearance, and 2) the similarity of the goods or services on which the marks are used. Indeed, strong similarity, or even identity, between two the appearance of two marks can dominate the analysis and reduce the need for similarity in the other factors.
Occasionally, you will see two marks that are identical, and infringement is clear. This is often the case where a product is copied wholesale. However, you will often see unfortunate coincidences. I believe the below is an example of that.
Polar is a company that manufactures fitness electronics, such as GPS watches, cadence and power meters, and heart rate monitors. It is well known in the running, cycling, and triathlon communities as one of the leading electronics developers. A lot of athletes use and love Polar products. Polar has a registered trademark (No. 1,836,604) for a stylized design of its name, shown here:
The mark is registered in connection with “computer interfaces and software to be utilized with heart rate monitors for athletic and medical use” and for “heart rate monitors for athletic and medical use.” You most often see the mark in this form:
On the way to Ironman 70.3 Oceanside in California last March, my racing buddy was looking through a triathlon magazine. He was thumbing through the pages looking for his national ranking. Out of the corner of my eye, I spotted what I thought was that distinctive black-red-black logo Polar, and I looked over. I saw this:
Now, these marks are not identical. But they are close! First of all, the literal element of the mark is nearly the same: POLAR versus ROLA. Three letters the same, with the only different letter R being only very, very slight different from the letter P. Then, the same second letter is red, contrasted with black in the rest of the word. Arguably, the POLAR trademark registration makes no claim of color, but one can’t argue that the same colors typically used don’t contribute to at least a first impression, perhaps causing an initial interest based on color confusion. Once the colors have grabbed the onlooker’s attention, then the protected aspects of the trademark registration play a heavier role. Lastly, both marks have a negative strikethrough element running through all of the letters, and at the same height in each mark. All of these elements combined present a case of near identity between the marks.
Now, the products are not that similar. POLAR is used for heart monitors, and ROLA is used for cargo baskets. But they do both have an athletic focus. Further, both products are routinely marketed, as seen here, through triathlon channels. The case of infringement is strong here, but I think (or hope) that ROLA’s adoption of the mark was coincidental or perhaps was unknowingly, subconsciously inspired by POLAR.