How do you know if your trademark is being infringed?

When someone else is making unauthorized use of your trademark or a similar mark in a manner that is likely to cause consumer confusion as to the source, sponsorship, or approval of the goods or services they are selling.

The likelihood of confusion analysis is nuanced and fact-dependent, and it involves a multi-factored test. While those factors can vary depending on what jurisdiction you are in, courts typically consider and weigh the following:

① Similarity of the Marks: The more similar the marks are in sight, sound, and meaning, the more likely consumers will be confused. This is one of the most critical factors in the infringement analysis.

② Similarity of the Goods or Services: The type of goods or services offered under the infringing mark and your trademark also plays a significant role. Confusion is more likely if they are identical or highly or closely related. Conversely, unrelated goods or services reduce the risk of confusion.

③ Strength of Your Trademark: The stronger and more distinctive your trademark is, the better your chances of proving infringement. The strength analysis looks at both conceptual strength and commercial strength. Conceptual strength means where your mark falls on the spectrum of distinctiveness. Commercial strength measures marketplace recognition. The longer you’ve used your mark, the more money you’ve spent advertising your mark, and the more consumer recognition you have, the stronger your mark is commercially.

④Actual Confusion: Evidence of actual consumer confusion, such as customer complaints or surveys, is exceptionally compelling in demonstrating infringement. However, actual confusion evidence isn’t required to prove infringement, and a lack of it doesn’t undercut your case because actual confusion evidence is hard to come by. Consumers often don’t even know they are confused or don’t take the time to tell you that they’ve been confused, even if they realize it.

⑤Intent of the Infringer: The infringer’s intent matters. If you can show they deliberately copied your mark to benefit from your brand’s reputation or to cause confusion, this can weigh heavily in your favor.

⑥ Marketing and Trade Channels: Courts will consider the target market for both parties and where and how you both are promoting and selling your goods or services. The more overlap, the more likely confusion is.

⑦ Consumer Sophistication: Sophisticated consumers are less likely to be confused by similar marks. Suppose you sell a good or service that is very expensive or one that consumers heavily research before buying. In that case, your consumers are less likely to be confused than consumers of inexpensive goods who aren’t paying close attention to differences in the product, product packaging, or marketing.

Brient IP can help you determine whether you have a credible claim for infringement and the best course of action for enforcing your rights. Don’t hesitate to reach out to us!

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