Glossary
French: risque de confusion
The likelihood of confusion (risque de confusion) is the final condition for infringement where the goods and services and the signs are not identical — the French/EU counterpart of the Section 2(d) / DuPont analysis in US practice.
The likelihood of confusion is analyzed in view of the identity or similarity of the goods and services and the identity or similarity of the signs. The greater the similarity or identity on each axis, the easier confusion is to establish — the two factors interact, so strong similarity of signs can offset weaker similarity of goods, and vice versa.
Where both the sign and the goods or services are identical (“double identity”), the likelihood of confusion is presumed and need not be demonstrated — a structural shortcut with no exact US equivalent, where confusion must always be proven.
In French opposition proceedings, confusion is assessed on the registers: the signs and the goods and services as filed. The actual, practical conditions under which the goods are marketed are irrelevant. US counsel accustomed to arguing trade channels, price points, purchaser sophistication and marketplace realities should expect that evidence to carry no weight in an INPI opposition — the comparison is abstract, mark against mark, list against list.
See also: similarity of signs, similarity of goods and services, trademark imitation, trademark opposition before the INPI.