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What is Trademark Infringement?

Based on the provisions of the Lanham Act, trademark infringement occurs when someone uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which:

  • is likely to cause confusion, or to cause mistakes, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
  • in commercial advertising or promotion, misrepresents the nature, characterstics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.

The key phrase above is “likely to cause confusion.” Trademark law is designed to protect consumers, to prevent someone from becoming confused and thinking that a product or service is provided by a particular company when actually it is not.

However, deciding when this likelihood of confusion exists is not always an easy thing to do. Through the years, the courts have developed a number of factors to consider when evaluating the likelihood of confusion. Although the factors vary by jurisdiction, they generally include the following elements:

  • The strength of the trademark allegedly infringed.
  • The similarity between the plaintiff’s trademark and the mark used by the defendant.
  • The similarity of the good or services.
  • Evidence of actual confusion.
  • The degree of care likely to be exercised by consumers.
  • The marketing channels used.
  • The defendant’s intent in selecting the mark.

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