Trademarks give notice of the source of a good or service. Marking goods or services is a way of putting your name on it. Often times, many related goods or services bear the same mark, by the same company. Establishing a reputation, linked to a mark, is very important to businesses. A mark may be trademarked, if the mark is distinctive, and if the mark is not already in use by another person or business entity.
What Actions Infringe on a Trademark?
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.
How is Trademark Infringement Proven?
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.
Other Types of Trademark Infringement
A person is also liable for trademark infringement if the person intentionally induces another to infringement on a trademark.
A person is liable for trademark infringement if the person continues to supply his or her goods to a third party whom he or she knew or should have known was engaging in trademark infringement.
A person is liable for trademark infringement if the person has direct control and monitoring of the instrumentality used by a third party to infringe on a trademark, and the person knew or should have known the third party would use the instrumentality to infringe.