Upon seeing/hearing Orchid, how many will commit Orchard to memory instead?
Based on my experience, in residing on Orchid Lane more than a quarter-century, I’d venture to say, far more than you might believe — a real appreciable number.
Just this past weekend, during the age of “social distancing” guidance, someone having our address to make a delivery was confused, unable to find Orchard Lane.
I’ve noticed this confusion many, many times over the last twenty-five plus years.
More often than not, when a business seeks to verify our loyalty program status, we’ll give our name and phone number, then they’ll try to confirm, “on Orchard?”
I’ve corrected these errors too long, now I simply agree, knowing what is meant.
To make sure it isn’t just me, I asked my daughter whether she’s ever experienced others confusing Orchid with Orchard, she responded, “all the time,” so there it is.
Polling other family members yielded the identical response: “Yes, all the time!”
Funny thing is, we’ve never compared notes on the subject, until I began writing.
So, what does this discovery mean for trademarks and likelihood of confusion?
Trademark likelihood of confusion typically determines a brand owner’s scope of rights, and the similarity of marks factor considers sight, sound, and meaning.
Orchid and Orchard clearly have different meanings, and they sound different, but there must be something about this pair of words that leads to confusion.
Perhaps the principle that people tend to remember the beginning and the end of things is at work — leaving people to forget or pass over what’s in between?
If so, how is it that Orchid for watches and Orchard for chronometric instruments peacefully coexist on the Principal Register, with no refusal issuing at the USPTO?
I’m not too surprised by the lack of a USPTO refusal, despite this search guidance:
“Don’t forget to use truncation devices (*) or wildcards (?) to look for marks with word stems similar to yours.”
“Consider searching with alternative spellings and homonyms to your mark. Use words that have the same or similar meanings to your mark. Also try words that have similar sounds or appearances or even phonetic equivalents.”
Had the Orchard search disclosed Orchid (it appears not), perhaps the different meanings of the words still would have led to passing over the prior Orchid mark.
When a brand owner may assume a different word mark falls outside its scope of rights, could it inform a strategy by consulting lists of commonly confused words?
I’d like to know whether uniquely confused word pairs like this are overlooked or if they’re routinely swept within normal trademark search protocols, any thoughts?
More simply, based on my observations, if someone were inclined to capitalize on this common word confusion, why not create Orchard to compete with Orchid?
The situations aren’t identical, but could a brand owner find relief in countering a different mark/meaning defense, by relying on typosquatting trademark cases?
Both possible harms to the brand owner might be viewed as seizing the benefit of another’s brand equity by setting traps sprung by very predictable mistakes.
This also may be where the bad faith intent factor plays a role in analyzing all of the likelihood of confusion factors, including the similarity of the marks factor.
Since my frame of reference is that Orchid can make people think Orchard, I’m wondering, is the opposite true too: Does Orchard make people think Orchid?
Or, does the likelihood of confusion door only swing one direction with this pair?
How many other word pairs exist that are demonstrably and readily confused?
Finally, if you managed the Angry Orchard cider brand, would you be bothered by Angry Orchid beer? If so, no worries, that one is discontinued, at least it appears.
Too many questions to ponder, I’ll stop now, as we all continue “social distancing.”
