Whether it is the Nike “swoosh” or McDonald’s “Big Mac” trademarks are part of our every-day lives. Trademarks are significant and valuable assets to any business, and businesses need to ensure their trademarks are fully protected. This means ensuring trademark infringement does not occur.
What is trademark infringement?
Trademark infringement takes place when a party is using a trademark that is not their own in connection with goods and/or services in a way that will likely cause confusion about the source of the trademarked material. Trademark infringement can lead to a lawsuit. In a trademark infringement suit, the plaintiff must show that they own a valid trademark, that they were the first to use the trademark, and that the defendant’s trademark would confuse consumers about the source of the goods and/or services related to the trademark.
Key factors in a trademark infringement case
Courts in a trademark infringement case will consider several factors when determining whether consumers would be confused by the defendant’s use of the mark. These factors include:
- How similar the marks are to one another
- How related each parties’ goods and/or services are to one another
- How the goods/services are advertised, marketed and sold
- The ways the goods/services are purchased
- The range of possible purchasers
- Whether actual confusion is present due to the allegedly infringing mark
- The defendant’s intent for using the mark; and
- How strong the plaintiff’s mark is
These are only some factors that may be considered in a trademark infringement case. So, the next time you buy a pair of sneakers or sit down at your favorite burger joint, remember that the words, phrases, symbols and designs associated with these products are likely all protected with trademarks.