What Constitutes Trademark Infringement?

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The following is an excerpt from the article, What Constitutes Trademark Infringement? published on FranchiseHelp.com.

For brand-centric enterprises (franchise systems included), trademark protection is of utmost importance. If a competitor – knowingly or otherwise – starts using a trademark that interferes with your exclusive trademark rights, this can have significant negative effects for your business. Even if you ultimately prevail in a trademark infringement lawsuit, you likely will have spent substantial sums of money to do so, and potentially lost business and even lifetime customers along the way. 

What is Trademark Infringement?

The basic test for trademark infringement is whether someone else is using a trademark that creates a “likelihood of confusion” amongst consumers in the relevant marketplace. At the outset, this means a few critically important things:

>A trademark does not have to be an exact copy of another in order to be infringing – in terms of protecting yourself, you need to be looking broader than just exact replicas;
>There is potential for confusion any time two similar trademarks would be presented to consumers at the same time – so infringement may occur with respect to products or services that are related to yours, even if they aren’t the exact same, and using even an identical trademark in a completely unrelated area (candy bars vs. architecture services, for example) likely won’t be considered trademark infringement; and,
>Intent is irrelevant – well, almost—someone can infringe on your trademark rights even if they don’t know that you exist, but willful infringement might cost the infringer extra.

Of course, someone who uses your trademark won’t be infringing if they have your permission to do so. This permission can come in the form of a license or franchise, and may even be implied where, for example with media buys, someone else needs to use your trademark in order to do what you’ve asked them to. However, subject to the terms of any agreement that is in place, this permission can be revoked, and then if the former licensee continues to use your trademarks they are setting themselves up for trademark infringement liability.

Continue reading: What Constitutes Trademark Infringement?

Jeff Fabian assists business owners in minimizing risk and protecting their intellectual property assets so that they can stay focused on running their businesses. Visit www.fabianip.com for more information, and follow Jeff on Twitter @FabianOnIP.

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