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July 26, 2023 | BusinessTrademark

What is Trademark Infringement?

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Author(s)
Olivia Loftin

Associate Attorney

Jari Wilson

Associate Attorney

Trademark law safeguards identifying features such as names, logo, slogans, packaging, etc., that brands use to differentiate their goods or services from those of others.  However, not all trademarks are protected.

What Is Trademark Infringement?

Trademark infringement is the unauthorized use of another’s legally valid trademark.  To establish a trademark infringement claim, the plaintiff must demonstrate that (1) they own a valid and protectable trademark, and (2) there is a likelihood of confusion among consumers due to the alleged infringer’s use of the trademark.

What Is A Valid Trademark?

A trademark can be any combination of words, symbols or designs that identify the source of goods or services.  A valid trademark must be in use in commerce, meaning the owner uses it regularly in interstate commerce to identify their goods or services.  Token use of a trademark, such as a single sale of goods, is insufficient.  Additionally, a valid trademark must be distinctive, meaning it is strong enough to be used as a source identifier.

Is There A Likelihood Of Confusion?

Federal courts in New York examine eight factors to determine if there is a likelihood of confusion between trademarks.  These factors include the strength of the plaintiff’s mark, the similarity between the two marks, the proximity of the products, the chance that the infringer will expand further into the industry, evidence of actual confusion, the infringer’s good faith in adopting the mark, the quality of the infringer’s product or service and the sophistication of the consumers.

Are There Other Ways To Protect Your Brand?

Businesses must use every possible means to protect their trademarks.  Trademark owners have an obligation to monitor their marks, and if a mark becomes generic, it may be canceled.  An attorney can help determine the necessary steps to safeguard your business.

Conclusion

If you suspect that your mark is being infringed, prompt action is crucial.  Failure to proactively stop infringing conduct may result in losing your rights.  If you suspect another party is using your trademark or a similar one without your permission, or if you have been accused of infringement, contact an experienced trademark lawyer today.

Photo by Simone Secci on Unsplash

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