Key Factors in Determining if Trademark Infringement Occurred
The United States Patent and Trademark Office (USPTO) defines trademark infringement as “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.” How do you determine if trademark infringement happened? There are a number of different factors that will be considered. Here, our Florida trademark infringement attorney highlights the key factors that courts use to determine if trademark infringement actually occurred.
- Similarity of the Marks
To start, courts assess the facial similarity of the marks in question. Indeed, you need to determine if the contested marks are visually, phonetically, and/or conceptually similar enough to cause confusion among consumers. The comparison includes the look, sound, and meaning of the marks. Notably, even relatively subtle similarities in design that might cause consumers to mistakenly associate the products or services of one company with another could be grounds for infringement. If you have any questions about similarity, an experienced trademark attorney can help.
- Connection of Goods/Services
Industry matters. For there to be trademark infringement, there must be a risk that reasonable consumers would be confused as to the source of the products/services. Infringement is more likely if the products or services are directly competitive or sufficiently related that they could be thought to come from the same company, even if they are not direct competitors. Most trademark infringement cases are brought against companies that are competing in similar markets. Goods/services that are not connected are less likely to be trademark infringement.
- Distinctiveness of the Mark
The inherent distinctiveness of the mark or its acquired distinctiveness through use determines its strength. Stronger marks—meaning those that are fundamentally arbitrary or fanciful—are afforded a wider scope of protection against similar marks. On the other hand, descriptive or generic marks receive limited protection. The more distinctive the mark, the easier it is to claim infringement. For this reason, it is generally best for companies to choose distinctive trademarks when launching new branding campaigns.
- Evidence of Actual Consumer Confusion
Finally, federal courts and Florida courts will consider any evidence of actual consumer confusion when evaluating a trademark claim. This is not a required element. With that being said, it is far easier to prove trademark infringement if there has already been a significant amount of confusion among consumers. Surveys, direct consumer testimony, or instances of misdirected communications can all serve as proof. The presence of actual confusion will strengthen a trademark infringement claim.
Consult With Our Florida Trademark Infringement Lawyer Today
At Perkins Law, we are a brand protection law firm that is committed to protecting your trademarks. If you have any questions about trademark infringement, we are here to help. Give us a phone call now or contact us online to arrange a confidential initial consultation. Our firm is based in Boca Raton and we provide IP law services throughout all of South Florida.
Source:
uspto.gov/page/about-trademark-infringement
