Branding is an extremely valuable business practice. It separates you from the others, it is literally your identification. Figuratively, it projects to the world what your business stands for or represents. But, what do you do if someone mimics your mark? There are both state and federal laws that provide protections. Here's a quick glimpse of the law.
The central issue in an action for trademark infringement or false designation of origin claim is whether the unauthorized use of the mark is "likely to cause confusion." 15 U.S.C. § 1114(1); 15 U.S.C. § 1125(a)(1)(A). Likelihood of confusion exists when the defendant's use of a mark is likely to confuse, deceive or cause mistake among an appreciable number of ordinary buyers as to the source of or association between the parties' products or services. Duluth News-Tribune v. Mesabi Publ'g Co., 84 F.3d 1093, 1096 (8th Cir.1996). When evaluating likelihood of confusion, a court must consider: (1) the strength of the trademarks; (2) the similarity between the marks; (3) the competitive proximities of the parties' products; (4) the alleged infringer's intent to confuse the public; (5) the evidence of actual confusion; and (6) the degree of care reasonably expected of potential customers. Squirt Co. v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir.1980).
There are hundreds upon hundreds of cases that get down to the very, very fine points of these elements, but for the purposes of this blog, the above does a nice job of getting you introduced to the fundamentals. If you think your highly valued and important mark is being copied, I can further address the merits of your case with you and what your options are going forward.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney. All information contained in links are the property of the linked site.
