A brand can be a name, image, symbol, or slogan used to identify goods or services. Trademark infringement occurs when confusion arises about the source of goods or services. Factors considered include the strength of the mark, similarity of goods or services, and marketing channels used. Notable cases include Apple vs. Apple Corps and Google’s AdWords service.
A brand is often a name, but can also be a domain name, image, symbol, logo, phrase or slogan, color, product design, or product packaging used to identify the source or sponsor of goods or services. Other items, such as fragrances, shapes and sounds can also be registered as trademarks. Under the Lanham Act, it is illegal to use a trademark in a way that could confuse consumers as to who is the source or sponsor of a good or service. When this type of confusion arises, it is referred to as trademark infringement. The main cases of trademark infringement are high-profile lawsuits in which the owner of a well-known trademark sues a party claiming trademark infringement.
In all trademark infringement cases, regardless of the parties, the same factors are commonly used to determine likelihood of confusion, which is key to proving infringement. Considerations include the question of how strong the plaintiff’s mark is in the first place, how similar the defendant’s goods or services are to the plaintiff’s, how similar the defendant’s mark and the plaintiff are, whether the defendant and the plaintiffs use the same marketing channels, the likely degree of care a purchaser of each’s goods or services might employ, the defendant’s goal in obtaining the trademark, both parties’ growth plans, and any actual evidence of confusing for consumers.
One of the most notable trademark infringement cases was that of Apple Inc., the computer and iPod® company, against Apple Corps, Ltd., the Beatles company. The case was initially settled in 1991 and re-settled in 2007. The 2007 settlement replaced the previous settlement and gave Apple Inc. ownership of the “Apple” trademark. In return, some of the “Apple” trademarks have been licensed to Apple Corps so it can continue to use them.
A major series of trademark infringement cases have focused on Google’s use of trademarks in its AdWords service. Those suing Google over this included American Blinds, American Airlines, Geico and – in a class action lawsuit filed in 2009 – all Texas-based trademark owners who had their registered trade names used by their competitors. In November 2009, Yahoo! resolved a similar trademark infringement case brought by American Airlines.
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