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Do you have an infringement case over trademark confusion?

Perhaps you have used a particular trademark for many years and your customers often identify your company by it. Now you find that a trademark used by another company is so similar to yours that it is causing confusion among your customer base.

Trademark infringement may have occurred. However, if you are to prevail in a court action, you must be able to prove the confusion issue by using an established set of standards.

Types of trademarks

A trademark can be a letter, name, symbol or design that identifies a business or particular products or services. A “TM” after the logo or mark designates an unregistered trademark. The “SM” symbol indicates a service mark identification. A logo that is registered through the U.S. Patent and Trademark Office bears the “circle R” designation.

Federal trademark protection

The Lanham Act, passed by Congress in 1946, contains federal statutes that provide protection for both registered and unregistered trademarks. If you seek to prove infringement under federal law, you must first prove that you own a valid, legally protected mark, and that the trademark used by the other company has a strong probability of confusion.

State standards

A trademark infringement matter is not easy to prove. However, the confusion factor, as experienced by your customers, would be an important element in your case. In 1979, the Ninth Circuit Court of Appeals established a set of standards to help clarify matters of this sort. These standards include: 

  •         Length of use of the mark
  •         Similarity to the protected mark
  •         Proximity of the two businesses
  •         Evidence of consumer confusion
  •         Types of goods and amount of care a consumer is likely to use in selecting the goods
  •         Marketing channels used by the businesses
  •         Likelihood of business or product line expansion
  •         Intent of the infringing party

Your options

Your first concern is the protection of your customer base, which means your trademark must be protected. An experienced attorney can review the facts and advise you on the proper course of action to take.

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