Does Pandora’s single P mark infringe PayPal’s double P mark? PayPal says yes and filed a lawsuit claiming Pandora’s use of the single P mark causes confusion among consumers.

Every Federal circuit has adopted some form of the “likelihood of confusion” factors the Fourth Circuit articulated in George & Co. LLC v. Imagination Ent. Ltd., 575 F. 3d 383 (4th Cir. 2009). Applying those factors here to the facts as currently known in the PayPal, Inc. v. Pandora Media, Inc., 2017 WL 2289184 (S.D.N.Y.) case would go something like this:

Is the Plaintiff’s mark distinctive? Answer: Yes. Most consumers recognize the blue double P as PayPal’s logo.

Are the marks similar to consumers? Answer: Likely, yes. There are many similarities between the two logos. Both use the letter “P” in similar block style with the “P” filled in. Both use a similar royal blue color. PayPal’s logo is a double “P” in italic font utilizing two different color blues and Pandora’s logo is a single “P” in regular font. Even with this difference, the two are quite similar looking.

Are PayPal’s and Pandora’s goods and services similar? Answer: No. One is a service for making payments and transferring money online; the other is a music streaming provider.

Are the facilities used by each similar? Answer: Yes. Both companies offer services through their websites and through apps installed on consumers’ mobile devices. Albeit one is a music website and the other a payment processing website. Indeed, PayPal stated in its Complaint that both companies are battling “for the precious ‘real estate’ on the screens of consumers’ mobile devices.”

Do the companies advertise similarly? Answer: Both companies advertise on the Internet and smart phone apps. PayPal stated in its Complaint that it has advertised its services on Pandora.

Did Pandora have an intent to confuse consumers? Who knows, but I suspect there will be absolutely no evidence that Pandora attempted to capitalize on PayPal’s goodwill, or cause confusion.

Is there evidence of actual confusion? This is often considered the strongest evidence of likelihood of confusion. PayPal alleged in its Complaint that it wrote to Pandora prior to the filing of the Complaint and “provided over 110 pages of examples of consumer confusion and chatter about the similarities of the new [Pandora] logo.” But given the massive exposure of these two marks, even 110 pages of examples may not be enough to swing this factor heavily in favor of PayPal. Plus, people writing about similarities evidence their knowledge of two separate parties. But, this is a fact question and much more information is needed.

Does the quality of Pandora’s services impact the analysis here? No. The quality of Pandora’s services are high.

Are the buyers of each service sufficiently sophisticated to realize they are using Pandora’s music streaming services versus payment-processing services from PayPal? Likely yes.

Thinking through the factors is helpful as this is how all trademark infringement cases are analyzed, albeit, typically with more evidence than can be presented here at this early stage of the litigation.

PayPal also sued Pandora for trademark dilution on the basis that Pandora’s mark infringes PayPal’s famous mark. A claim for trademark dilution does not require that the parties’ goods and services be similar, which may make this claim easier to prove.

If you need assistance deciding whether your trademark has been infringed, or if someone has accused you of trademark infringement, contact Jim Astrachan at jastrachan@gdldlaw.com or Donna Thomas at dthomas@gdldlaw.com.