What is the infringement test?
What is a Trademark Infringement Test? The Trademark Infringement Test determines the likelihood of people confusing two companies with similar marks. If you feel like someone is using your trademark in a way that confuses your customers, there are a few tests to check for Trademark Infringement.
How do you identify a 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 is holistic test for trademark infringement?
The dominancy test focuses on the similarity of the prevalent features of the competing trademarks that might cause confusion. In contrast, the holistic test requires the court to consider the entirety of the marks as applied to the products, including the labels and packaging, in determining confusing similarity.
What is literal infringement?
The term “literal infringement” means that each and every element recited in a claim has identical correspondence in the allegedly infringing device or process. … Compare the claims, as properly construed, with the accused device or process, to determine whether there is literal infringement.
What are the elements of copyright infringement?
A copyright infringement action requires a plaintiff to prove (1) ownership of a valid copyright, and (2) actionable copying by the defendant of constituent elements of the work that are original.
What qualifies as trademark infringement?
Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.
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 don’t enforce your trademark?
If you don’t enforce your trademark, you risk losing reputation, business, sales, customers, and more to the infringer. There’s also a concept in trademark law called abandonment. Generally, if you don’t use your mark for three years or more, it’s considered abandoned.
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.