USA: Likelihood of Confusion, it happens to us all, big and small: eBay Inc. v. Afrebay, Inc

• Published date: 24 February 2024
• Author: Jordan Pavlow
• Law Firm: Vivanco & Vivanco

In one of this year’s biggest and most interesting trademark disputes, eBay Inc. faced off against Afrebay, Inc., with the former opposing the registration of the mark «AFREBAY» for advertising and payment processing services. The crux of the matter revolved around the potential for confusion with eBay’s own well-established mark, «EBAY»

Despite Afrebay’s efforts to bolster its case with evidence of third-party registrations and uses of marks containing the term «bay,» the Board remained unpersuaded. This case sheds light on the intricate interplay between trademark strength, similarity, and the determination of likelihood of confusion.

At the heart of the decision was the recognition of the significant commercial strength of the EBAY mark. Despite Afrebay’s submissions of third-party marks incorporating «bay,» the Board underscored that the absence of «ebay» in these marks failed to diminish the strength of eBay’s brand. This reaffirmed the principle that even when minor differences exist between marks, the likelihood of confusion may still be high, especially when the services offered are identical.

The Board’s analysis delved into various factors, including the conceptual and commercial strength of the EBAY mark, the similarity between the marks, and the nature of the services provided. Notably, it emphasized that the identity of the services and the commercial strength of the EBAY mark played crucial roles in determining the likelihood of confusion.

Furthermore, the Board highlighted that consumers’ perception of the marks was fundamental. It concluded that «AFREBAY» was likely to make a greater impression upon purchasers due to its dominance in Afrebay’s mark. Despite differences in appearance, sound, and...