Likelihood of confusion in the Third Circuit
The Third Circuit applies the following ten-part analysis known as the Lapp factors after Interpace Corporation v. Lapp, Inc., 721 F.2d 460 (3d Cir. 1983) for determining whether a likelihood of confusion exists:
(1) similarity of the marks;
(2) the strength of the owner’s mark;
(3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase;
(4) the length of time the defendant has used the mark without evidence of actual confusion;
(5) the intent of the defendant in adopting the mark;
(6) the evidence of actual confusion;
(7) whether the goods are marketed or advertised through the same channels;
(8) the extent to which the targets of the parties’ sales efforts are the same;
(9) the relationship of the goods in the minds of consumers; and
(10) other factors suggesting that the consuming public might expect the prior owner to manufacture both products, or manufacture a product in the defendant’s market, or expect that the prior owner is likely to expand into the defendant’s market.
Notably, in McNeil Nutritionals LLC v. Heartland Sweeteners LLC, 511 F.3d 350 (3d Cir. 2007), the Third Circuit held that in a trade dress case, the first Lapp factor — the degree of similarity between the plaintiff’s trade dress and the allegedly infringing trade dress — is the most important factor in a likelihood of confusion analysis, especially where the goods are directly competing.