What is the gold standard to determine whether there is trademark infringement?
‘Likelihood of confusion’ is the gold standard by which infringement is measured across almost every region although, of course, specific phraseology may vary. Many regions, including the US, have different ‘tests’ that they apply to assess likelihood of confusion with set factors to measure.
What determines trademark infringement?
Breaking Down The Elements. To prevail on a claim of trademark infringement, a plaintiff must establish that it has a valid mark entitled to protection; and that the defendant used the same or a similar mark in commerce in connection with the sale or advertising of goods or services without the plaintiff’s consent.
What are the 8 elements used to determine infringement of a trademark?
In determining the likelihood of confusion in trademark infringement actions the courts look to these eight factors: the similarity of the conflicting designations; the relatedness or proximity of the two companies’ products or services; strength of the plaintiff’s mark; marketing channels used; the degree of care …
What are the most common defenses to trademark infringement?
The most common defenses in trademark infringement, unfair competition and trademark dilution suits include descriptive fair use, nominative fair use, laches, unclean hands and trademark misuse, fraud in obtaining the registration, and application of the First Amendment.
What is the difference between trademark dilution and infringement?
Dilution differs from normal trademark infringement in that there is no need to prove a likelihood of confusion to protect a mark. Instead, all that is required is that use of a “famous” mark by a third party causes the dilution of the “distinctive quality” of the mark.
What is the best way to conduct a trademark search?
Conduct the Search.
Search on TESS–the USPTO’s web-based Trademark Electronic Search System-at your local Patent and Trademark Resource Center (www.uspto.gov/ptrc) or at home if you have Internet access.
Can you trademark a name already in use but not trademarked?
If you’re wondering, “can you trademark something that already exists,” the simple answer is “no.” Generally speaking, if somebody has used a trademark before you, you can’t register the trademark for yourself.
What is an example of a trademark infringement?
One common example of trademark infringement is where clothing manufacturers attach brand labels to generic items, attempting to have them “pass off” as authentic. Trademark infringement violations are very serious and are often involve aspects of deceptive trade practices.
What happens if you infringe a trademark?
Civil remedies for trademark infringement include injunctions, damages or account of profits, and delivery up and disposal of offending products. Criminal penalties are also available.
What is trademark dilution and give an example?
For example, a famous trademark used by one company to refer to hair care products might be diluted if another company began using a similar mark to refer to breakfast cereals or spark plugs. Dilution is a basis of trademark infringement that applies only to famous marks.