The Nuts and Bolts of Trademark Infringement
Most of us are familiar with “knock offs”— products that look like the original but are not authentic. The sale of these counterfeit products is illegal, and the seller could face severe penalties if charged with trademark infringement. This is simply one example of trademark infringement in everyday life. Understanding what a trademark is and how trademark infringement occurs may go a long way to help prevent serious infringement issues from arising in the future.
What’s a Trademark?
A trademark is a recognizable word, phrase, symbol, design, or a combination that is used to identify and distinguish the source of the goods of one party from those of others. Examples include names, logos, slogans, and mascots, among other things.
What’s Trademark Infringement?
Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner. To prevail on a trademark infringement claim, a plaintiff must show it has a protectable trademark, and there is a likelihood of confusion between its trademark rights and the defendant’s use of the mark. The factors considered when determining whether a “likelihood of confusion” exists are: (1) the type of mark allegedly infringed; (2) the similarity between the two marks; (3) the similarity of the products or services; (4) the identity of the retail outlets and purchasers; (5) the identity of the advertising media used; (6) the defendant’s intent; (7) sophistication and similarity of consumers; and (8) any evidence of actual confusion. No single factor is dispositive and a finding of a likelihood of confusion need not be supported by a majority of these factors.
What are the Consequences of Trademark Infringement?
A trademark owner who believes his trademark is being infringed may seek an injunction from a court requiring the alleged infringer, among other things, to cease all use of the trademark. In addition, the trademark owner may seek monetary damages, including lost profits, attorneys’ fees, and treble damages for willful infringement.
Source: Westchester Media v. PRL USA, 214 F.3d 658 (5th Cir. 2000).
For more information on this topic, please visit our Trademark Litigation service page.
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