A trademark infringement hinges on whether there is any  likelihood of confusion caused by the two marks at issue. Trademark protection provides the business the right to stop others from using the mark but only the infringement causes the likely confusion about the source of goods.

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Trademark infringement cases are expensive because the owner of the trademark needs to prove that the alleged infringers confusing the consumers. To identify the infringement damages, the owner must use data, experts and research to show the confusion which leads to a loss of revenue or the brand’s goodwill. You could be in for expensive legal disputes. The better and the best way to avoid trademark infringement is to make sure that your brand is unique at the outset.

Goodwill is the legal term which is associated with the brand in the marketplace. Imagine that if cheap knock-offs flooding the marketplace by using the famous fashion designer’s logo, this may lead the customers to think that the brand has declined in quality. This is a loss of goodwill.

A trademark holder generally doesn’t own the mark rather they own the right to use the mark to sell goods or services. The business invests to generate the goodwill with its customers and trademark can be used to protect that investment. Trademark infringements are not just the use of the protected trademark but the use of those trademarks which may confuse the customers.

Domain trademark infringement is not a different one because even if you register your website legally but if it infringes a trademark, you will be liable for trademark infringement damages.

Registered trademark:

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As like copyright, you can own the rights to use the trademark once you filed for your product.  When merchants use the “TM” symbol on their mark, it is a way of informing to their customers that it is the product or company’s mark. But if you allegedly take the mark and duplicate it, then you would be liable for the trademark infringement.

When they have R in a circle next to their name means they have registered their trademark and registration gives a constructive notice worldwide. This means that trademark laws assume that everyone in the world knows or can find out if the trademark got registered.

Avoiding the trademark infringement requires a basic understanding of the trademark law, research and sound judgement. Before starting any new venture, take some time to make sure that you are not going to choose the similar existing trademark.

Difference between the states often relates with how the factors are grouped, a shift in the burden of proof or other distinctions which doesn’t impact on the outcome.

The common factors described here which often carry the most weight when consider infringement:

Comparison of the marks:

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This is actually the most important factor that itself can decide the whole case. Because when we do the comparison, if the marks are not similar then there is no infringement.

How we generally analyse the similarity or dissimilarity of marks? In the legal proceedings, the court considers the appearance such as connotation, common letters, pronunciation and the commercial impression. Marks could have different meanings and pronunciations but if it looks so close visually, then definitely it may get confusion. Marks could be different but something about their meanings may cause an issue. Since Apple owns APPLE, they have a strong basis to challenge someone from starting a computer company under the same name “apple”.

Comparison of the goods or services:

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This factor looks so closely whether the goods or services under the respective marks are related or not.  For example, a consumer may expect that the car and the motorcycle tires are sold under the same trademark come from the same company, but a consumer may not have that expectation if the same mark is used for both the bicycle and the motorized vehicle tires which have different shapes and functionality.

One common misconception is to decide whether goods or services are related by class number. For example, class 28 contains the Christmas tree ornaments and the hockey sticks not usually considered related goods. On the other side, class 25 may cover the clothing and class 35 includes the retail clothing stores, which could produce a related goods or services. So, when considering the relativity of goods and services, compare the actual goods and services rather than the class numbers in a registration.

Strength of the mark:

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Every trademark expresses some level of strength from weak to very strong. This can be determined by whether the mark is suggestive or arbitrary one. For e.g. APPLE (which is an arbitrary mark which has been viewed as strong since the term has nothing to do with the underlying goods.

Channels of trade, purchaser and the pricing:

This factor can split up into many different factors, but the whole idea is only to analyse how the marks appears with the goods and the targeted consumers. A sophisticate consumer who takes time for an important purchase decisions are much less likely be confused by similar marks.

On the other hand, less similar marks such as those used in candy purchased on impulse buy at a checkout counter are more susceptible to confusion.

Actual confusion:

Has there been actual confusion? Have customers called any wrong company or returned the products to the wrong place? While this factor can be very favorable in finding infringements, but the lack of confusion is not always meaningful. If the two marks are coexisted only for a short time period or in disparate settings, confusions may not have a chance to occur.

Additional thoughts:

The determination of trademark infringement is not limited to these factors. Use of marks which are conjunction with the marks in question can be considered. Disclaimers, advertising and the actual packaging may also be a part of this analysis.

Infringement is subjective; there is no algorithm to determine that. With the set of facts, it could result in different outcomes depending on which factor a court might have taken to consider or how it might be allocated.

Contacting a trademark attorney to help sort these other factors is a significant way to analyse the particular set of circumstances.

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