Generally 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.
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:
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.