Dr. Dre is the stage name for rapper-producer Andre Young. However, you have probably never heard of Doctor Drain M. Burch, a Pennsylvania-based gynaecologist and media personality. Dr. Drai just won a huge battle against Dr. Dre in front of The United States Patent and Trademark Office (“USPTO”). The ruling said that the rapper “Dr Dre” failed to show that people would be confused or misled by the Doctor “Dr Drai” branding. Rap music v. gynecologist that one seems pretty obvious.
Dr Dre argued that Burch was intending to build his brand around his already famous name. However, Burch argued that by being associated to the rapper’s brand would harm his practice rather than do it good. The test the USPTO uses in this type of situation is called the Likelihood of Confusion Test. It comes from a case called Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961). These factors are intended to be a guide, and not all factors may be particularly helpful in any given case.
  • Strength of the senior user’s mark. The stronger or more distinctive the senior user’s mark, the more likely the confusion.
  • Similarity of the marks. The more similarity between the two marks, the more likely the confusion.
  • Similarity of the products or services. The more that the senior and junior user’s goods or services are related, the more likely the confusion.
  • Likelihood that the senior user will bridge the gap. If it is probable that the senior user will expand into the junior user’s product area, the more likely there will be confusion.
  • The junior user’s intent in adopting the mark. If the junior user adopted the mark in bad faith, confusion is more likely.
  • Evidence of actual confusion. Proof of consumer confusion is not required, but when the trademark owner can show that the average reasonably prudent consumer is confused, it is powerful evidence of infringement.
  • Sophistication of the buyers. The less sophisticated the purchaser, the more likely the confusion.
  • Quality of the junior user’s products or services. In some cases, the lesser the quality of the junior user’s goods, the more harm is likely from consumer confusion.
  • related products and services.
These factors hold for any type of possible consumer confusion. So when you are coming up with a product name, a company name, or anything that you want to build a brand around make sure you do your research. Even though Dr. Drai the. obgyn won in this circumstance that is not going to happen every time.