What is considered trademark infringement [Expert Answers]



Last updated : Aug 15, 2022
Written by : Iraida Billingsley
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What is considered trademark infringement

What is an example of 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 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 elements of a trademark infringement claim?

Thus, "use," "in commerce," and "likelihood of confusion" are three distinct elements necessary to establish a trademark infringement claim.

What is the difference between copyright infringement and trademark infringement?

The main difference is that a trademark protects the unique identification of a brand or product (e.g. the logo of a brand) and must be applied for, whereas copyright prevents copying, reproduction, or distribution of specific work (such as music, written words, performances, and films) and is gained automatically if ...

What are some 5 examples of trademarks?

  • Under Armour®
  • Twitter®
  • It's finger lickin' good! ®
  • Just do it®
  • America runs on Dunkin'®

What is and isn't trademark infringement?

A trademark offers the exclusive use of a sign in a particular territory for selected products and services. Trademark infringement occurs when, whether by accident or design, a brand steers too close to another's sign without permission. Whoever owns the rights can then start legal proceedings.

How do you prove a trademark is violated?

To establish infringement of a registered trademark, the plaintiff must prove a likelihood of confusion, which generally means that the average consumer of the goods or services at issue would conclude that the goods and services of the defendant originated from or were authorised by the trademark owner.

What is not protected by trademark laws?

Generic terms are not protected by trademark because they refer to a general class of products rather than indicating a unique source.

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 are the 4 types of trademarks?

  • Generic. A generic term is a common description that does not receive trademark protection.
  • Descriptive.
  • Suggestive.
  • Arbitrary or Fanciful.

What are damages for trademark infringement?

The Lanham Act provides for three categories of damages that the court may award to a successful trademark infringement Plaintiff: (1) Actual Damages, (2) Disgorgement of the Infringer's Profits, and (3) Attorney's Fees and Costs. Disgorgement of Profits.

What happens if you use a trademark without permission?

Using a registered trademark without permission from the owner can lead to a trademark infringement lawsuit.

Is Mickey Mouse a trademark or copyright?

People can now create their own stories with the original Mickey Mouse character. However, there are still legal hurdles like trademark law. Disney holds Mickey Mouse trademarks for a variety of commercial uses. And while copyright is time-limited, trademarks are not.

How do you know if something is copyrighted or trademarked?

You can search all applied-for and registered trademarks free of charge by using the U.S. Patent and Trademark Office (USPTO)'s Trademark Electronic Search System (TESS). If your mark includes a design element, you will have to search it by using a design code.

Is it better to trademark or copyright a logo?

How to legally protect your logo design. To protect your logo, you need a trademark or service mark (trademarks are generally used for products, while service marks are usually applied to services). You should not copyright or patent a logo design.

How do you avoid trademark infringement?

  1. Trademark search. Before registering your trademark, conducting an exhaustive trademark search is a must.
  2. Register your trademark and actively use it.
  3. Trademark monitoring.
  4. Litigation process.
  5. Trademark infringement removal.

What are 3 items that can be trademarked?

Non-generic words, logos, slogans, colors, smells, and sounds can all be registered with the USPTO, as long as you can demonstrate how they represent your business. Inventions and works of authorship cannot become registered trademarks and should be protected with patents or copyrights respectively.

What is the most common reason that a trademark might be rejected?

Likelihood of confusion is the most common reason an application will be rejected by the USPTO. Essentially, if there is a high probability that the general public will confuse your trademark with someone else's (already existing) trademark, your registration will not be granted. The two marks need not be identical.

Can I put a Nike logo on a shirt for personal use?

In fact, copyright and trademark violations can in some cases lead to criminal charges. Selling shirts with copyrighted images isn't impossible, but you should never use someone else's logos on your T-shirts or other clothing without their explicit permission.

How much of a logo can you copy?

It is true that a logo needs to be different than existing logos to be legally used, but the 20 percent rule -- or 25 percent rule, depending on whom you ask -- is little more than a myth.


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What is considered trademark infringement


Comment by Francesco Shoultz

hey everybody my name is marcelo dominguez and i welcome you back to my trademark channel here you are going to learn about everything trademark related whether you're a small business or medium-sized business online or offline if you haven't subscribed i invite you to do so right now before you even start watching this video if you are wondering how in the world am i going to put a stop to trademark infringement how am i going to stop that person from using my name slogan brand trademark because they've been using it after i started using it then you want to stay tuned and watch everything i have to say because you might take a few take home tips you see trademark infringement is a really big deal it's a big deal on amazon even off of amazon if you have an online store or if you have a brick and mortar store right now the issue is obviously more prevalent in online businesses and on amazon because of what is going on people working more behind their computers rather than visiting brick and mortar locations but the issue of trademark infringement has been around for a really really long time it is such an important issue that you need to make yourself aware of for various reasons which i am going to touch on in this video reason number one you need to know about trademark infringement because if you ever encounter it in other words if somebody sends you a letter letting you know that you have been trademark infringing you might not even know it you didn't know that you were using a slogan or a business name that is already in use by somebody else moreover that business name or slogan or tagline might not even be the exact same one as the one you're using and i'll tell you a little tip it's a little secret more often than not the name you are using is not going to be the exact same as the one that the trademark infringer is claiming you are infringing upon so in other words it might be similar to someone else's and they still might have the right to say that you are trademark infringing and so in those situations you might feel totally caught off guard you think to yourself but mine is so different mine is not the exact same i do not even sell the exact same products well let me tell you there's a lot of gray area when it comes to trademark infringement and i mean gray area in the mind of the consumer so if you're someone that sells on amazon then it's very important for you to know how you're going to approach this situation what am i going to do am i going to respond to this person first am i going to reach out to an attorney first so that is reason number one and i want to address that very question that i left you hanging with right now should you respond to the trademark phone call that lets you know you're infringing should you respond to the letter that tells you you are trademark infringing or should you reach out to an attorney first and my suggestion is always this if you feel you are really in a predicament and you might dig yourself a deeper hole by responding to that letter or to that phone call then i suggest that you reach out to an attorney first you see the information that you provide either on a phone call or through an email or through a letter through any means of communication can be used against you later now that sounds so cliche right it sounds some like something a typical lawyer would say anything you say can and will be used against you but that is the truth so you want to make sure that you are saying and providing information that is accurate and that won't later be used against you so sometimes you have to be careful of how you word things there are different ways to explain facts so you want to make sure that you aren't going to get yourself into any kind of trouble by responding in your choice of words so that's what an attorney is there for to kind of make sure that you're responding in such a way that you aren't digging a deeper hole for yourself now reason number three if you are made aware that you are trademark infringing it might not always be in the form of a phone call or a letter or an email and i'll tell you if you are in the trademark application process there is something called a notice of opposition now a notice of opposition is a formal filing typically by a lawyer through the trademark trial and appeal board that basically tells the trademark trial and appeal board hey i want to put a stop to this person's application for such and such reasons one of those reasons could be trademark infringement so it might not always be in the form of an email or a phone call it's going to come in a circumstance which might not be that familiar to you everybody familiarizes themselves with emails and with phone calls so you know that could be expected but when it comes in the form of a notice of opposition through you know the trademark process or through your trademark journey then it might really throw you off guard i don't want that to set you back so if you're interested in finding out why you received a notice of opposition or if you're interested in being defended against a notice of opposition then make sure that you click down below you have to scroll down into the description so use your mouse keep scrolling until you find the information that you need to be able to contact me remember it's free to send an email so i just want to remind you that responding to a trademark infringement can sometimes be as easy as responding to a phone call and working it out with the other side and if you're somebody who prefers to do all of this in email that is good because it's always great to formalize communications in such a way that you can refer back to them later but i'm not so sure that i would recommend that you should respond on your own with your own words in your own language using your you know using however you would personally respond because that could get you in trouble later now again to recap you could also be receiving a trademark infringement notice through a notice of opposition now i want to give you an example of some of the clients that i've helped without telling you all of the details but what i can say is what i have said already and that is that most of the time you're not going to be contacted by somebody who has the exact same name as the one you're trying to use more often than not it's going to be someone who's using a similar name and so that's also going to throw you off guard so trademark infringement is all about understanding these nuances right um because it is common to get phone calls that say but how how could they be uh telling me that i'm infringing why would i receive a c synthesis letter if mine is different than theirs my spelling the spelling of my name the spelling of my slogan or tagline is different maybe it's different by just a couple of letters maybe it's different by just a couple of words but nonetheless uh consumer confusion in the marketplace is what ultimately drives attorneys to send that cease and desist letter or to oppose someone's trademark so it's really important that if you want to understand what is actually going on that you hire an attorney


Thanks for your comment Francesco Shoultz, have a nice day.
- Iraida Billingsley, Staff Member


Comment by Mariano

Thanks for this interesting article


Thanks Mariano your participation is very much appreciated
- Iraida Billingsley


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