There’s been constant debate about that for years, revolving around issues of ‘fair use’ and ‘dilution’ and whether or not a trademark is ‘distinctive,’ ‘descriptive’ or ‘abstract.’ We then open ourselves to interpretation for a variety of cases, and that muddies the waters considerably, resulting in tons of money shelled out for painful litigation processes over one simple word and how it’s used!
Truthfully, we can say that it is a headache. I don’t deny that. Some of the cases are necessary, for sure, though. But there are certainly some that seem frivolous. This begs the question: are we getting too complicated with trademark law? Are people getting too ‘picky’ about their marks, copyrights and such? Should we streamline the law to make it all about the simple goal: preventing consumer confusion and the passing off of goods made by someone else (which is stealing, basically)?
I introduce a fairly well-known kind of ‘test’ to determine that basic concept of consumer confusion: it’s called the “moron in a hurry” test. Consider an individual rushing through a store, because he or she is late for work. Bear in mind that this is just an example: let’s say he or she needs a candy bar, and he or she has to think quick. What does the person do? That ‘moron’ rushes for a Snickers, because that happens to be one of the best bars on the planet.
Let’s just say, for argument’s sake, that the candy bar he or she saw sort of ‘looked’ like a Snickers bar, but really wasn’t. Maybe it was a “Sneakers” bar! Maybe the design was pretty similar, too. Ask yourself the question: would that ‘moron’ make the mistake of confusing that bar with a Snickers? Possibly. If you can reasonably say and believe that someone in a rush would reach for what he or she actually thought was what he or she wanted (but it turned out wasn’t), then without a doubt, no frills or questions asked, you have a tried-and-true textbook trademark infringement case. Simple, right?