A trademark is a mark used to indicate the source of a good or service.
The Benefits of Trademarks
Most companies use similar marks on all their products to indicate the company name, among other things. If a company can establish a good reputation it will be likely that a person will consider using all products under the company mark, even if the person has only tried, and liked, one type of good or service offered by the company. Establishing a good reputation and linking it to a trademark is one of the main ways companies can grow their businesses.
First Use of a Mark
Companies may not use a mark that is already trademarked. In order to obtain a trademark, one requirement is that the person or company be the first to use that mark in the marketplace. Therefore, a company may not trademark a mark that is already in use in the marketplace. Additionally, by using a mark that is already in the marketplace, a company may be liable for trademark infringement.
Infringing on an Existing Trademark
Use of a mark that is trademarked, without permission, infringes on that trademark. Use of a mark that is deceptively, or confusingly similar to a trademark, without permission, infringes on that trademark. A person does not have to register a mark in order to have a trademark. By simply being the first to use a mark in the marketplace a person acquires a trademark.
Proving Infringement on an Existing Trademark
To prove trademark infringement, a plaintiff must prove by a preponderance of the evidence (more likely than not) that the defendant used the plaintiff’s trademark, without the plaintiff’s permission, in commerce. For infringement, the use of this trademark means use in the form of a reproduction, copy, counterfeit, or colorable imitation of the plaintiff’s mark in connection with the distribution or advertisement of goods in a way that is likely to cause confusion as to the source of the goods. The infringing mark need not be an exact copy of the trademark.
When viewed in its entirety, if the mark used by the defendant is likely to cause confusion in the minds of reasonably prudent purchases or uses as to the source of the product in question, it infringes on the plaintiff’s trademark.
Other Ways to Infringe on an Existing Trademark
A person may also be liable for infringing upon the trademark of another by merely inducing another to infringe on the trademark. Even if a person did not know of an existing trademark, the person is liable for trademark infringement if the person should have known of it. Often this is determined by looking at whether a reasonable person would have known of it, were that person in the same situation.
