In order to prove a violation of law, a person must prove certain things. Each law has elements. Each element must be satisfied in order to prove a violation of the law. In order to prove a trademark violation, or trademark infringement, a person must prove each element provided by law. Words used in those elements will also be defined.
Example of Elements of a Law
For example, think about the law prohibiting driving through an intersection when the traffic signal is red. Most laws prohibiting this conduct consist of two elements: (1) driving through an intersection, (2) when the traffic signal is red. Proof of a traffic violation only occurs if both elements are proven.
It is not sufficient to prove that a person drove through an intersection if it cannot be proven that the light was red at the time. The traffic light may have been green, and therefore the action was completely legal. Likewise, it is not sufficient to prove that a traffic signal was red without proof that a person drove through the intersection at that time. The person may have stopped at the red traffic light and waited for it to turn green, which is completely legal.
This basic concept applies to all laws, including trademark infringement.
Elements of Trademark Infringement
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.
Therefore, the elements of trademark infringement are, as established by law, are: (1)The defendant used the plaintiff’s mark, (2) the plaintiff’s mark was trademarked, (3) the defendant did so without the plaintiff’s permission, and (4) the defendant used the mark in commerce.
Examples of Legal Definitions
Additionally, the terms used in the elements will often be defined. For example, in the example above of driving through an intersection when the traffic signal is red, driving must be defined. Often that is defined as physical control of a vehicle. A passenger is not a driver.
Additionally, a red traffic signal will be defined. A traffic signal is something put in place by a governmental agency with the authority to do so. A neighbor’s red pen light is not a red traffic signal.
Trademark Element Legal Definitions
Trademark law also defines the words used in the elements of trademark. 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.