To determine whether a trademark is registrable or whether it infringes the trademark rights of a senior trademark owner, the U.S. Patent and Trademark Office (“USPTO”) and courts, respectively, weigh various factors, called the “du Pontfactors,” to assess whether a likelihood of consumer confusion exists between the trademark and another mark, i.e., whether consumers would confuse the goods and/or services provided under the respective marks as coming from the same source.

The moment you begin using a trademark in U.S. commerce to identify the source of your goods or services, you establish what are known as “common law” rights in the trademark. What constitutes a “use in commerce” is legally defined. A “use in commerce” is defined as “the bona fide use of a mark in the ordinary course of trade.”