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The time-honored and oft-litigated standard relevant in adjudging trademark lawsuits focuses squarely on confusion. That is, courts are routinely asked to consider whether an alleged infringing use of a protected mark is sufficiently similar in look and feel to reasonably promote confusion in a consumer as to the source of the mark.
Put another way, in the form of a question: Is company A’s alleged infringing mark so similar to company B’s trademark that consumers are mistakenly confusing the two and harming the latter by mistakenly purchasing goods from the infringer?
A recent trademark infringement spat between PayPal and Pandora highlights the confusion standard in a prominent way, with the former contending that Pandora is brazenly copying its mark for profit. PayPal seeks an injunction against that alleged unlawful use, as well as an unspecified amount of damages.
PayPal is a dominant global online payment system. Pandora is a so-called music-streaming service. At first blush, it might not seem immediately clear to many readers how the companies’ respective marks could conflict, given the dissimilarity of the products and services they provide.
PayPal has a ready response to that, which it offered up in the legal complaint it recently filed against Pandora.
PayPal states that Pandora is on the skids financially, with “no obvious path to profitability.”
Given its plummeting prospects, PayPal alleges in its lawsuit, Pandora brazenly copied PayPal’s mark (readers can form their own conclusion by comparing the marks via this link) in hopes that customers would mistakenly open Pandora’s online app appearing on smartphones and computer tablets. Reportedly, more than a score of online posts have referenced consumer confusion between the companies’ marks.
The bottom line, PayPal maintains, is that it is the more popular and profitable company and that Pandora is seeking to unlawfully exploit that success by openly copying PayPal’s logo in hopes that consumers will accidentally tap into a Pandora app.