Trademark law helps consumers identify the source of a product. Trademark owners have exclusive rights to use identifying words, symbols, or phrases. Trademark strength depends on distinctiveness, with arbitrary or fanciful brands being the strongest. Trademark rights can be lost through abandonment, assignment, or becoming generic. Infringement occurs when there is a likelihood of confusion for consumers. Factors considered include the strength of the mark, similarity of goods and marks, and evidence of genuine confusion.
The policy behind trademark law is to help consumers identify the source of the product they are buying. Thus, trademark rights give the trademark owner the exclusive right to use any identifying word, symbol, or phrase associated with the product they sell. In cases where a particular feature, such as a colour, of a product is uniquely associated with that product, trademark rights may extend to that feature in what is called a “commercial dress”. Finally, if it is a service rather than a good in which a person or business has trademark rights, then it is called a “service mark”, although it is treated the same under the law as a trademark.
The strength of trademark rights depends on how distinctive the mark is. There are four levels of strength: arbitrary or imaginative, suggestive, descriptive, and generic. An “arbitrary or fanciful” trademark means that the word does not directly refer to the product, such as a computer company named after a type of fruit. A “generic” brand is on the opposite side of the spectrum: a company that sells fruit named after a type of fruit would be an example of a generic brand. Arbitrary or fanciful brands are the strongest brands, and generic brands receive no trademark rights. Suggestive and descriptive brands fall somewhere between the two.
Trademark rights can be lost through abandonment, assignment or if the trademark becomes generic. Abandonment occurs when the trademark rights owner ceases use of the trademark in commerce with the inferred intent not to resume use. Unlawful assignment occurs when the owner of the trademark transfers his rights to the trademark to another person and does not supervise the use of the trademark by the assignee. A brand becomes generic when, in the public mind, the product name is associated with the type of product itself rather than with the source of the product.
A trademark rights owner can successfully sue someone for infringement of their rights if the alleged infringer uses the trademark in a way that causes a “likelihood of confusion” for consumers as to the origin of the product. The most important factors in determining the existence of likelihood of confusion are the strength of the mark, the similarity of the goods and marks used and evidence of genuine confusion. Less important factors considered by the courts in determining whether there is a likelihood of confusion are the similarity of the marketing channels used, the degree of caution used by the average purchaser and the inferred intent of the alleged infringer.
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