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What counts as trademark infringement?

On Behalf of | Oct 21, 2022 | Business Law

Trademark infringement is the illegal use of intellectual property to market a good or service. According to the United States Patent and Trademark Office, the unauthorized use of a trademark leads to confusion or deception about the source of the good or service, and the trademark owner may file a civil action.

However, trademark infringement is not always apparent. Continue reading to learn more about what counts as trademark infringement.

Establishing infringement

First, the plaintiff must establish that they own the trademark and that they have priority to use the mark over the defendant. They must also make the case that the defendant’s use of the mark is deceptive or causes consumer confusion. Federal trademarks carry a legal presumption that goods bearing that mark come from a sole source. Unauthorized use of a trademark defies that legal presumption.

Other factors the court considers include how the defendant markets and sells their goods or services, the strength of the trademark, purchasing conditions and whether any tangible evidence exists of consumer confusion. Trademark owners might also claim dilution of their mark. This rests on the assertion that the infringement reduces the value of their legally purchased trademark.

Possible remedies

If infringement occurs, the damages might include payments from the defendant’s profits to the trademark owner, payment of the trademark owner’s attorney fees, an injunction to stop using the mark and an order of destruction or forfeiture of the infringing goods or services.

Owning a trademark creates a legal right to market goods and services under a particular brand. Infringement damages that right, but proving infringement is not always straightforward.