The latest case of trademark infringement involving a cannabis company provides a great illustration of a trademark concept that can be difficult to convey to clients, which is the concept of “likelihood of confusion” where two marks are not identical, or even all that close to identical.

According to news reports, “Menthol cigarette brand Kool owner ITG has sued a California cannabis company Capna Intellectual (doing business as Bloom Brands) accusing it of infringing upon its logo.” The two logos are shown below, for comparison:

The KOOL mark was registered as a U.S. federal trademark in 1949, and has become well-known among consumers, and particularly among smokers/tobacco consumers. Marks that have been registered for a very long time and have gained household recognition tend to be afforded a greater scope of protection than newer, less well-known marks.

In comparing the two design marks – KOOL and BLOOM – I’m sure that many people are wondering how these marks could be deemed similar enough for a trademark infringement claim? While the inquiry as to the similarity of two marks is highly subjective, it is possible that two marks that are comprised of different words could be deemed confusingly similar

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