Trademark-InfringementGenerally speaking, trademark infringement deals with a person or business attempting to sell or selling goods, products or services as the goods, products or services of another person or business.  The primary concern of liability for trademark infringement and trade name infringement and for unfair competition is the likelihood of consumer of customer confusion about the source of the business’s goods, products or services.  The essential element of a trademark or trade name is the exclusive right of the business or business owner to use a specific word, slogan, device or product to distinguish the business’s product or service.  Unfair competition, on the other hand, generally exists if the total impression or look-and-feel of the package, size, shape, color, design and name upon the consumer or customer will lead to confusion as to the source of the product.

Trademark Infringement

The term “trademark” generally includes any word, slogan, name, symbol, device, or any combination of those elements adopted and used by a business or merchant to identify its goods or products and distinguish them from those manufactured or sold by others.  More specifically, the term “trademark” has been defined as any word, name, symbol, or device or any combination thereof:

  • Used by a person, or
  • Which a person has a bona fide intention of using in commerce

and he or she applies to register on the principal register in order to identify and distinguish his or her goods, products, or services (including a unique product) from those manufactured or sold by others, and to indicate the source of the goods, even if that source is unknown.

In business litigation practice, service mark infringement is governed by the same principles as trademark infringement.

Trademark infringement's main concern is the likelihood of consumer of customer confusion about the source of the business's goods, products or services.

Trade Name Infringement

A  trade name is a word, name, symbol, device, or any combination thereof in any form or arrangement used to identify a person’s business, vocation, or occupation and to distinguish it from the business, vocation, or occupation of others.  A trade name may be a personal name, corporate name, or fictitious name and it may be expressed by the addition of words or terms that are merely descriptive of the goods manufactured, produced or sold, or by a geographical name identifying the location of the business.  However, exclusive rights, in most instances, cannot attach to the use of the additional descriptive terms or words, or the geographic designation.

Unfair Competition

An unfair competition claim may be premised on, but is not limited to, the following:

  • The simulation or deceptive copying of advertising methods
  • The appearance of business facilities – trade dress
  • A product’s shape or configuration
  • The use of similar corporate, business, and professional names
  • Trade dress – everything the consumer sees when the consumer looks at a packaged product (including a business facility or storefront), such as the color schemes or color combinations, the shape or configuration of product or packaging, the wording and the form and placement of working on the product or package, and the presence of any decorative symbols on the product or package
  • The dilution of goodwill of a trademark