A trademark is an intellectual property right in a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of goods or services of one party from those of others. Trademark infringement is the unauthorized use of a trademark, service mark, or a substantially similar mark on goods or services that are competing or related.
Test to Determine Trademark Infringement
Although a use of particular trademark need not be identical in order to constitute trademark infringement, not all uses of another’s mark are considered infringement. The key to proving that an alleged use is trademark infringement is whether the use is similar enough to cause confusion to an average consumer.
The test used by courts to determine whether a claim constitutes infringement is called the likelihood of confusion test. Under the likelihood of confusion test courts consider the following factors when evaluating whether trademark infringement has occurred:
The strength of the mark;
The similarity of the trademark holders goods or services to the alleged infringers;
The similarity of the allegedly infringing mark to the trademark being infringed;
Similarity of marketing channels used for goods and services;
The degree of care likely exercised by customers purchasing the goods or services;
The alleged infringers intent when they selected their mark;
The likelihood of expansion of parties products or services into new markets; and
Actual evidence of consumer confusion.
Damages & Remedies for Trademark Infringement
When trademark infringement occurs, a trademark owner may file a lawsuit against the infringing user of the same or similar mark to prevent further use of the mark. Remedies for trademark infringement are similar to the tort of defamation and can include an injunction to stop the infringing use, monetary damages for the wrongful use of the trademark, and sometimes awards of attorney fees.
Internet Trademark Infringement Removal Attorneys
If you believe that you or your business is a victim of a trademark infringement involving the internet, contact the experienced internet removal attorneys at Minc Law to evaluate your case. In many instances, it is possible for an attorney to completely remove infringing content from the web. Call (216) 373-7706 today to find out more information.
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