TRADEMARK: DEGREE OF CARE
the issue is likelihood of confusion with respect to the product or service
in question in the minds of the consuming public, it is critical to define
the term "the consuming public..." before we can decide what is the degree
of care likely to be employed. In so doing, we must consider the educational
background of the consuming public, the degree of sophistication of the
consuming public, and so forth.
At one extreme, we assume that small children are incapable of making the distinctions adults do, but this observation is of marginal value since small children do not make the purchasing decisions in the marketplace (or, at least, we like to think that we do and that they do not).
On the other hand, one cannot simply assume that the higher the intelligence, the higher the degree of care. We have coined the words "street smarts" and "common sense", and the very connotation of those terms is that those who possess the trait are more sophisticated consumers.
In our particular case, Big and Small both agree that accounting and law firm consumers are likely to exercise a high degree of care, and Small makes the point of contrasting that agreed fact with a presumed lower degree of care exercised by first-time entrepreneurs. While the question of the degree of care employed by the particular customers targeted is still subjective, like the question of likelihood of confusion itself, there is more likely to be a consensus on this factor then there is about some of the other factors considered in determining likelihood of confusion.
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