What is trademark infringement?
Trademark infringement occurs when a party uses the same or a similar trademark that another party already has the prior rights to use. The key factors that a party whose trademark is being improperly used by another must show are as follows:
First, the party with the claim must show that he or she has priority. That means he or she was using the mark in commerce before the other party. Second, the party with the claim must show the other party's use of the same or a similar mark is likely to cause consumer confusion. Some examples of factors that may show a likelihood of consumer confusion are:
- The type and strength of the claiming party's mark, including how distinctive it is.
- Similarity of the parties' marks.
- Similarity of the products the marks represent.
- Similarity of the parties' customers.
- Similarity of the parties' advertising media.
- Defendant's intent.
- Instances of actual confusion.
Notably, to bring a claim against a party for trademark infringement, the party improperly using the mark does not need to be a competitor of the suing party. It is only required that the party's improper use is likely to cause consumer confusion, even if that party does not compete with the claiming party.
If a claimant proves a claim for trademark infringement, the claimant may recover both damages, including defendant's profits in certain circumstances, and injunctive relief.