WHAT IS TRADEMARK INFRINGEMENT?
Trademark Infringement takes place when someone uses another's Trademark without permission to sell a product or service, or otherwise gain financially. The infringement may include using the exact Trademark as someone else or one that could easily be confused with someone else's Trademark.
WHAT IS THE TEST FOR TRADEMARK INFRINGEMENT?
The test for Trademark Infringement is the likelihood of confusion. I.e. would the use of a Trademark in connection with the sale of a good or service cause consumer confusion as to the source of the goods/services or as to the sponsorship or approval of such goods/services? In order to make a determination on whether consumers are likely to be confused the courts typically look at several factors including but not limited to the:
- strength of the trademark
- proximity of the goods
- the similarity of the trademarks
- evidence of actual confusion
- similarity of marketing channels used
- degree of caution exercised by the typical purchaser
- defendant's intent
IS THE USE OF SOMEONE ELSE'S TRADEMARK ALWAYS CONSIDERED TRADEMARK INFRINGEMENT?
No, using someone else's Trademark may not be considered Trademark Infringement if:
- Someone is using someone else's Trademark for an unrelated good or service in a manner that does not cause consumer confusion, or in a manner that is not likely to cause consumer confusion.
- There is a fair use of a Trademark such as in comparative advertising, news reporting or in uses not intended for financial gain.
- Commerce is not involved.
WHAT IS THE REMEDY FOR TRADEMARK INFRINGEMENT?
The remedy for Trademark Infringement is a lawsuit. The plaintiff may be awarded an injunction against further infringing of the Trademark and the defendant may be ordered to destroy the infringing materials or deliver them to the plaintiff. In addition the plaintiff may seek monetary relief including:
- Defendant's profits
- Cost of the action
Contact the C2 Global Law Trademark Lawyers to find out how to protect yourself and minimize your liability for Trademark infringement, initiate an action against someone who you believe is infringing on your Trademark or if you have received a Cease and Desist letter from someone demanding that you stop using their Trademark.