Acquiring a Trademark and Violating a Trademark


Trademarks are important in the business world because often a business is selling it’s good name with each product or service. Businesses spend time and money developing a good reputation with the public, or with their specific markets, in order to obtain more business.

Importance of Trademarks

A business with a good reputation will want to have a mark on all its goods and services. When the target market sees that mark, it will know that the good or service is backed by a reputable business and is of good quality.

When a business begins to consider marking its goods or services and hopes to establish a good reputation with its target market, it will also want to consider ways to prevent others from using its good reputation in competition, or damaging its good reputation.

Acquiring a Trademark

One way to do this is to obtain a trademark on the mark the business will use. Once a business obtains a trademark in a mark it obtains the exclusive rights to use that mark.

Obtaining a trademark prevents other companies from selling goods or services with the same mark and making a profit of the original business’ good reputation. It also prevents other companies from providing poor quality goods and services to others while using the same mark and damaging the reputation of the original company.

Violating a Trademark, or Trademark Infringement

Use of a mark that is trademarked, without permission, infringes on that trademark. Use of a mark that is deceptively, or confusingly similar to a trademark, without permission, infringes on that trademark.

A person does not have to register a mark in order to have a trademark. By simply being the first to use a mark in the marketplace a person acquires a trademark.

Proof of Violation of a Trademark

To prove trademark infringement, a plaintiff must prove by a preponderance of the evidence (more likely than not) that the defendant used the plaintiff’s trademark, without the plaintiff’s permission, in commerce.

For infringement, the use of this trademark means use in the form of a reproduction, copy, counterfeit, or colorable imitation of the plaintiff’s mark in connection with the distribution or advertisement of goods in a way that is likely to cause confusion as to the source of the goods. The infringing mark need not be an exact copy of the trademark. When viewed in its entirety, if the mark used by the defendant is likely to cause confusion in the minds of reasonably prudent purchases or uses as to the source of the product in question, it infringes on the plaintiff’s trademark.

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