How Courts Assess Likelihood of Confusion in Cases of Non-Competing Goods?

Introduction

Trademark disputes are no longer limited to situations where two businesses sell the same product or operate in the same market. In reality, brands today extend far beyond a single line of goods. A mark once associated with a particular product often comes to represent a broader commercial identity. Because of this, courts are increasingly required to examine infringement claims even where the goods involved are not directly competing.

This raises a practical and legal question: can consumers still be confused when the goods are different? Courts have consistently held that they can. However, the way this confusion is assessed is far from straightforward.

Confusion Is Not Limited to Mistaken Purchases

In cases involving non-competing goods, confusion is rarely about a consumer buying one product thinking it is the other. The concern is more subtle. Courts focus on whether the consumer is likely to assume some form of connection between the two businesses—such as common ownership, licensing, or endorsement.

What matters is perception. If an ordinary consumer, with no special knowledge and imperfect memory, believes that the goods come from the same source or are commercially linked, the requirement of confusion may be satisfied. The absence of direct competition, therefore, is not decisive.

Reputation of the Earlier Mark Matters Greatly

One factor that repeatedly influences judicial reasoning is the strength of the earlier mark. A well-known or highly distinctive mark enjoys a wider protective scope than an obscure one.

Courts recognize that famous brands often diversify. When such a mark appears on unrelated goods, consumers may naturally assume that the brand owner has expanded its business. In these situations, the likelihood of confusion arises not because the goods are similar, but because the mark itself carries strong associative value.

Similarity of Marks Still Lies at the Core

Even when goods are dissimilar, the similarity of the marks remains central to the analysis. Courts examine visual, phonetic, and conceptual similarities, but always from the standpoint of overall impression.

Importantly, courts do not compare marks side by side in a laboratory-like manner. Instead, they consider how the mark would be remembered by an average consumer. Where the resemblance is strong, the possibility of association becomes difficult to ignore.

Goods May Be Different; Markets Often Are Not

It is often argued that since the goods fall under different trademark classes, confusion should not arise. Courts, however, have been cautious in accepting such a rigid approach. Trademark classification is treated as a starting point, not a conclusion. What ultimately matters is how the goods are encountered by consumers in everyday commercial settings.

In assessing this, courts pay attention to practical factors such as whether the goods move through similar trade channels, whether they are marketed to the same section of the public, or whether their use is in some way connected. In a market where brands routinely cross product boundaries, it is not uncommon for consumers to associate different goods with a single source. Judicial reasoning in this area reflects an awareness of this commercial overlap rather than a strict reliance on formal classifications.

The Role of Brand Extension

Courts also take into account the increasing tendency of businesses to expand their brands beyond their original field of activity. Where it appears natural or commercially plausible for the proprietor of the earlier mark to enter the defendant’s line of goods, the possibility of confusion becomes more real.

From a practical viewpoint, courts seem less interested in drawing sharp theoretical distinctions and more focused on how consumers actually behave. If consumers are accustomed to seeing established brands diversify into new areas, it would be unrealistic for the law to ignore that expectation. In such cases, even dissimilar goods may give rise to an assumption of association.

Consumers and the Degree of Care

The nature of the consumer also influences the analysis. Where goods are inexpensive or purchased casually, courts are more willing to presume confusion. However, even where consumers are relatively sophisticated, confusion is not ruled out altogether.

Courts have repeatedly acknowledged that even careful consumers can be misled when a strong mark is involved. Attention does not always eliminate association.

Intention of the Defendant

While intention is not a mandatory requirement, it often colors the court’s assessment. If circumstances suggest that a mark was adopted to benefit from another’s reputation, courts are less hesitant in inferring confusion.

Such cases are viewed as attempts to trade upon existing goodwill rather than mere coincidence, and judicial response tends to be stricter.

Conclusion

Ultimately, determining the likelihood of confusion in cases of non-competing goods is a matter of judgment rather than formula. Courts balance multiple factors, keeping consumer perception at the center of the inquiry.

Insisting that confusion can arise only where goods directly compete would be disconnected from commercial reality. Trademark law, therefore, continues to evolve, recognizing that in today’s marketplace, a mark often speaks louder than the product it appears on.