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Trademark infringement

Trademark infringement can invoke customer confusion about a particular product. This is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence legal proceedings against a party which infringes its registration.

It happens. Small business owners casually name their product or service and step right into the trademark infringement land mine. Has your small business taken the necessary steps to protect against trademark infringement?

In Elizabethtown, Kentucky, Victor and Cathy Moseley decided to pursue the American dream and start their own business. Among the many tasks to start a company, the Moseley's had to find a name for their adult gift and lingerie shop. The couple came up with the name Victor's Secret and went on to open their store.

Victor's Secret did not remain secret when the legal department of Victoria's Secret sent a letter to the Moseley's claiming trademark infringement. In haste, the couple changed the name to Victor's Little Secret, but the change was not enough for Victoria's Secret who then filed a lawsuit.



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No matter the size of your business, you run the risk of trademark infringement each time you name a product, service, and your company. With an ever-growing number of trade names, take the necessary steps to reduce your risk of trademark infringement.

Where the respective marks or products or services are not identical, similarity will generally be assessed by reference to whether there is a likelihood of confusion that consumers will believe the products or services originated from the trademark owner.

Likelihood of confusion is not necessarily measured by actual consumer confusion, though normally one of the elements, but by a series of criteria Courts have established. A prime example is the test announced by the Ninth Circuit Court of Appeals in AMF, Inc v Sleekcraft Boats, 599 F.2d 341 (C.A.9) 1979. The Court there announced eight specific elements to measure likelihood of confusion:
  1. Strength of the mark
  2. Proximity of the goods
  3. Similarity of the marks
  4. Evidence of actual confusion
  5. Marketing channels used
  6. Type of goods and the degree of care likely to be exercised by the purchaser
  7. Defendant's intent in selecting the mark
  8. Likelihood of expansion of the product lines
If the respective marks and products or services are entirely dissimilar, trademark infringement may still be established if the registered mark is well known pursuant to the Paris Convention. In the United States, a cause of action for use of a mark for such dissimilar services is called trademark dilution.

In some jurisdictions a party other than the owner (e.g. a licensee) may be able to pursue trademark infringement proceedings against an infringer if the owner fails to do so.

The party accused of infringement may be able to defeat infringement proceedings if it can establish a valid exception (e.g. comparative advertising) or defence (e.g. laches) to infringement, or attack and cancel the underlying registration (e.g. for non-use) upon which the proceedings are based.

Notable cases

  1. Facebook, Inc. v. Power Ventures, Inc., case still pending.
  2. Google, Inc. v. American Blind & Wallpaper Factory, Inc., in which Google's AdWords program was alleged to be in violation of trademark.
  3. Rescuecom Corp. v. Google Inc., in which the use of trademarks in Google's AdWords program was found to be a "use in commerce" under the Lanham Act.
  4. Network Automation, Inc. v. Advanced Systems Concepts, Inc., in which the use of a competitor's trademark as an Internet advertisement search keyword was found to not constitute trademark infringement.
  5. College Network, Inc. v. Moore Educational Publishers, Inc., in which the use of a competitor's trademark does not qualify as a "use in commerce" is upheld.


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