When is it trademark infringement

Giganews, Inc. Not all circuit courts, however, have chosen to extend the Octane rule to trademark infringement cases. In Romag Fasteners, Inc. Fossil, Inc. For more on marks under the Lanham Act, please see certification marks , collective marks , and trademarks.

Please help us improve our site! No thank you. LII Wex Trademark infringement. Trademark infringement Primary tabs Overview Trademark law protects a trademark owner's exclusive right to use a trademark when use of the mark by another would be likely to cause consumer confusion as to the source or origin of goods. 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.

Activities that meet the "in commerce" requirement include: advertising by the alleged infringer in more than one state; interstate movement of goods bearing an infringing mark from manufacturer to seller; sending a product to another state for the purpose of registering a trademark; advertising in newspapers that have interstate distribution, on billboards near interstate highways, or on radio or television stations with an interstate broadcasting range.

If the goods in question are completely unrelated in the goods and services which provided: the court will typically find that confusion is unlikely, and therefore there is no infringement If the goods in question are related but do not directly compete for sales, the likelihood of confusion analysis becomes more complex. Defenses Trademark law is equitable and utilizes the traditional equitable defenses with the added element of a presumption favoring the registrant for trademarks that are registered under the Lanham Act.

Remedies The remedies for infringement under the Lanham Act are statutory and consist of: injunctive relief ; an accounting for profits; damages , including the possibility of treble damages when appropriate; attorney's fees in "exceptional cases;" and costs.

And the amount and quality of the evidence involved can have a significant impact on the outcome of an infringement lawsuit. In addition to claiming likelihood of confusion, a trademark owner may claim trademark "dilution," asserting that it owns a famous mark and the use of your mark diminishes the strength or value of the trademark owner's mark by "blurring" the mark's distinctiveness or "tarnishing" the mark's image by connecting it to something distasteful or objectionable-even if there is no likelihood of confusion.

An experienced trademark attorney, taking the particular circumstances of your case into consideration, should be able to provide you with an opinion as to the validity and strength of a trademark owner's claims. Search Trademarks. The information presented on this site does not constitute legal advice.

It should not be considered to replace advice from an attorney. Reference to any specific organizations, attorneys, law firms, corporations, or websites does not constitute the USPTO's endorsement or recommendation. How can you stop a competing business from using a trademark similar to yours? Are you concerned that a competitor is unfairly using the same or a similar trademark as your business? View More Articles. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.

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Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Once it has been determined that your mark may be registered, file a federal trademark application with the United States Patent and Trademark Office and ensure you comply with any follow up registration maintenance formalities. Trademark infringement can occur in any industry or organization and is often the result of incomplete research from the start, resulting in significant risks and expensive consequences.

These cases not only illustrate how trademark infringement can occur across a vast number of industries involving goods and services but further demonstrate how many of these outcomes could have been avoided by a more in-depth trademark research. If you believe someone has violated your trademark, the Lanham Act provides the following remedies:. The Trademark Trial and Appeal Board at the United States Patent and Trademark Office offers two types of proceedings for opposing a trademark application before registration an opposition or canceling a registered trademark a cancellation.

Any party who believes it may be damaged by the registration of an applied-for trademark application may challenge the registration of a trademark application to prevent the registration on the Principal Register by filing a Notice of Opposition within the day opposition period after the mark is published. However, opposition proceedings are not available for marks issued on the Supplemental Register.