Trademark infringement is the unauthorized use of a trademark, which varies by region. In the US, confusion is the key factor, with eight criteria used to determine infringement. Brand dilution can also apply to powerful trademarks, even in unrelated fields.
Trademark infringement is an infringement of the rights held by a trademark, without any authorization from the trademark owner or licensee. Trademark infringement depends on the trademark laws of the region in question, and what may be trademark infringement in one jurisdiction would not be in another. One of the main tasks that many international financial regulatory bodies take on is the management of trademark law, to try to ensure that trademark infringement is punishable in all major markets, to reduce the chances of a brand being debased anywhere of the planet.
The key to determining whether trademark infringement has occurred in the United States is whether confusion can be argued to exist by use of a similar or identical trademark. Trademark infringement occurs when one party uses something that can be shown to cause confusion with something another party owns a trademark for. This does not have to be an identical term, but it must be close enough that a strong likelihood of confusion can be demonstrated.
Since determining confusion could be somewhat problematic, from the purely logistical position of having to find out if a large mass of consumers were interested, courts have come up with a variety of criteria to determine whether trademark infringement has occurred. A famous set of criteria was established by the Ninth Circuit Court of Appeals in 1979, and includes eight distinct points: the strength of the brand, the proximity of the products, the similarity of the brand, any evidence of real confusion, marketing channels, the types of goods and care a consumer is likely to take, the intent of the offender, and the likelihood that product lines will be expanded.
For example, let’s say we own a small business, which I’ve called Bob’s Really Good Widgets. I spent years building brand recognition and a strong brand name, gave out coupons in the newspaper every week, and ran radio ads repeating the store name over and over again. Now let’s imagine that someone has opened a shop three blocks down, which they also called Bob’s Really Good Widgets. At this point, it’s pretty obvious they’re committing trademark infringement, since using an identical name could rob me of customers.
On the other hand, let’s say you owned a company called Dirty and we sold dirt bikes in Colorado. If another person were to start a business called Dirty in California that sold moisturizers, it is very likely that trademark infringement would not occur. In fact, if you only sold dirt bikes in a small Colorado town and didn’t advertise extensively, another company could probably start a company with the same name, also selling dirt bikes in California, without infringing trademark, because Our companies are far enough apart, and my reach is limited enough, that there is very little chance of confusion among clients.
At a different extreme, there are some trademarks that are so powerful that even companies in completely unrelated fields, on the other side of the country, could still be considered trademark infringement. This is due to a concept called brand dilution, where a company can demonstrate that any company using their brand, even when the chance of confusion is very low, would still decrease the value of their brand. This tends to only be true for the bigger brands, like Apple or Tide.
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