Trademark Infringement, Logo
Trademark infringement includes unauthorized use of a company name, brand, slogan or logo. A plaintiff may make a trademark infringement claim when a defendant has used a trademark or a confusingly similar mark in a manner that creates a likelihood of confusion, mistake or deception with consumers.
The confusion may be that the defendant’s product or service is the same as, or similar to, the plaintiff’s product or service. Or, there may be confusion that the defendant is associated, affiliated, approved, authorized, certified, endorsed or sponsored by the plaintiff.
Trademark Infringement Factors
In trademark infringement cases, courts look at several factors to determine if a likelihood of confusion may exist.
1. Similarity of the two marks
2. Strength of the mark
3. Marketing channels used
4. Evidence of actual consumer confusion
5. Intent of the defendant in using a mark
6. Proximity of products or services
7. Similarity in the goods and services offered
8. Degree of care likely to be exercised by the consumer
9. Likelihood of expansion of product or service line
The same mark may be used by two companies in the same area that provide different, unrelated services, such as Acme Plumbing and Acme Towing. But, there may be confusion between similar services such as Acme Plumbing and Acme Drain Cleaning.
A word or logo must be distinctive to be considered a trademark or service mark. Fanciful marks and arbitrary marks are the strongest type of mark, and are used for the sole purpose of serving as a trademark. Weaker types of marks are suggestive, descriptive, surname and generic.
A trademark, denoted by the symbol ™, or a service mark ℠, may be established under common law by regular use. A trademark may also be federally registered with the US Patent and Trademark Office (USPTO), denoted by the symbol ®, or registered under state law.
Trademark owners may do an Internet search to find trademark infringement due to unauthorized use of a company logo. A computer repair shop, displaying a logo for Apple, Dell, Microsoft or Hewlett-Packard, might be engaging in a manner intended to confuse or deceive the public that the repair shop was affiliated, approved, authorized, certified or endorsed by a well-known major corporation.
A computer retailer might use a computer manufacturer’s logo in sales ads, as an authorized retailer. Comparative advertising between similar products may be an acceptable use.
Another fair use might be a technology magazine, doing a tech review on new computer products. The magazine is in the publishing business, not computer manufacturing.
Trademark Infringement Remedies
Remedies available for trademark infringement include:
1. Injunction to stop threatened or actual trademark infringement
2. Attorneys fees for federally registered trademarks ®
3. Monetary damages for lost profits, lost reputation or goodwill
4. Punitive damages for willful and malicious infringement
To avoid trademark infringement lawsuits, business owners, bloggers and marketers should be careful in choosing content for a website, blog or printed material, so that logos closely resembling another company are not used, and other company’s trademarked logos are not used without written authorization or license.
Disclaimer: This article is not to be considered or used as legal advice. Contact a trademark attorney for legal advice. The USPTO website has useful information.