How do I Prove Trademark Infringement?
Trademark infringement is a violation of the exclusive right granted to a trademark owner to use their trademark in commerce. To establish trademark infringement, the following elements must be shown: (1) that the plaintiff owns a valid trademark; (2) that the defendant is using a trademark that is identical or substantially similar to the plaintiff’s trademark; and (3) that the defendant’s use of the trademark is likely to cause confusion, mistake or deception among consumers as to the origin or sponsorship of the goods or services.
What are Examples of Trademark Infringement?
An example of trademark infringement might be if a clothing company started using a logo of a diamond stone that was similar to the Volcom Stone logo, or if a company started selling sports drinks under the name Gatorpro (i.e., likelihood of confusion with Gatorade).
In these examples, the use of the similar trademark by the newer company would likely cause confusion among consumers who are trying to determine the source of the goods. This confusion could lead consumers to believe that the goods are affiliated with or endorsed by the company that owns the original trademark, when they are not.
It is important to note that trademark infringement can occur even if the infringing use is not intentional. For this reason, it is important for companies to conduct proper trademark searches and clearance procedures before using any trademarks in their business. This can help to avoid potential infringement claims and protect their brand.
Proving Likelihood of Confusion
While all the trademark infringement factors are important, the key factor in determining trademark infringement is likelihood of confusion. There are several factors to consider when determining whether a proposed trademark is likely to cause confusion with a pre-existing trademark in the marketplace. The factors include:
No single factor is dispositive, and all relevant factors should be considered in a holistic manner in determining the likelihood of confusion.
What are Some Ways to Avoid Trademark Infringement?
There are several steps that a business owner can take to avoid potential trademark infringement claims, including the following:
By taking these steps, a business owner can reduce the risk of potential trademark infringement claims and protect their brand. It is important to remember that each situation is unique, and seeking legal advice from our attorneys can provide additional guidance and support.