Practical Guide to Trademark Infringement: The Core Rule, the “Likelihood of Confusion” Test, and What Courts Actually Look For
Trademark disputes are no longer just “big brand” problems. A small food kiosk, an online seller, a local apparel label, or a printing shop can quickly face a demand letter, a takedown request, or even a criminal complaint when a mark used in trade appears too close to someone else’s registered mark. Under Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines (“IP Code”), the center of gravity of trademark infringement is not whether you copied “intentionally,” but whether your use is likely to cause confusion in the market.
Governing law: the registered owner’s exclusive rights
The owner of a registered mark has the exclusive right to prevent others from using identical or similar signs for identical or similar goods/services where such use results in a likelihood of confusion; and when the sign and the goods/services are identical, confusion is presumed (Sec. 147.1, IP Code).
What acts constitute infringement (the actionable conduct)
Infringement includes (among others) using in commerce a reproduction/counterfeit/copy/colorable imitation of a registered mark (or its dominant feature) in connection with sale, distribution, advertising, and preparatory steps—when such use is likely to cause confusion, mistake, or deception (Sec. 155.1, IP Code).
The Supreme Court has underscored that mere unauthorized use of a container bearing a registered mark, in connection with sale/distribution/advertising, may already be infringement if it is likely to confuse (Yao, Sr. v. People G.R. No. 168306, 2007).
The controlling issue: “likelihood of confusion” (and how it is evaluated)
The essential element is likelihood of confusion (Emzee Foods, Inc. v. Elarfoods, Inc. , G.R. No. 220558, 2021). Confusion may be:
- Confusion of goods (buyer purchases A thinking it is B), or
- Confusion of business/source (buyer believes the goods come from, are connected with, or are endorsed by the trademark owner).
Courts use tests such the Dominancy Test (focus on dominant features) in determining confusing (Dy v. Koninklijke Philips Electronics, N.V., G.R. No. 186088, 2017). The Dominancy Test is repeatedly treated as a primary standard in infringement analysis (Nestle, S.A. v. Dy , G.R. No. 172276, 2010).
Typical scenarios (practical examples)
- Online seller rebrands “just slightly”: You sell “PHILIPZ” lights with similar lettering and a similar device/logo style. Even if your packaging differs, the dominant feature may still drive confusion analysis.
- Same word mark, same goods: If you use an identical mark on identical goods, confusion can be presumed (Sec. 147.1, IP Code).
- “It’s only the container/label” defense: Using containers/labels bearing the mark may still be actionable if likely to confuse (Yao, Sr. v. People, G.R. No. 168306, 2007).
Practical advice: risk-reduction steps before you launch
- Check registration status and classes: The core statutory right is tied to registration.
- Avoid “dominant feature” overlap: Don’t copy the key word, key syllables, key logo element, or overall dominant look-and-sound.
- Document good-faith branding process: While intent is not the sole issue, documentation matters for negotiations and possible defenses.
- Take demand letters seriously: Early settlement/rebrand is often cheaper than litigation.
Since the IP Code gives the registered owner exclusivity and frames infringement around likelihood of confusion, and because Supreme Court doctrine focuses on the dominant features and consumer impressions, businesses should treat trademark clearance as a launch prerequisite—not an afterthought.
12 February 2026
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