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

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 meaning, the Board found that Afrebay’s mark bore sufficient resemblance to eBay’s marks to warrant a finding of likelihood of confusion.

In reaching its decision, the Board declined to address eBay’s dilution claim, focusing instead on the issue of likelihood of confusion. This underscores the complexity of trademark disputes and the need for careful consideration of multiple factors in adjudicating such matters.

In essence, the eBay Inc. v. Afrebay, Inc. case serves as a poignant reminder of the stringent standards applied in trademark law, particularly when dealing with marks of considerable renown. It underscores the importance of trademark strength, similarity, and consumer perception in determining the outcome of disputes and highlights the challenges faced by parties seeking to establish their rights in a crowded marketplace.

If you are facing a Section 2(d) likelihood of confusion rejection in your trademark application, hire an experienced attorney to help you resolve the issue. Contact us at  


Citation: all information was found from the case text and the Trademark Trial and Appeal Board Proceeding No. 91266958 and John Welch’s blog titled, «TTAB Sustains eBay’s Section 2(d) Opposition to AFREBAY & Design for Advertising and Payment Processing Services»

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Jordan Pavlow

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