Trademark infringement

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Factors in Trademark Infringement
– Validity of the trademark (registered or common law)
– Use of the trademark by the defendant
– Commercial use of the mark
– Connection of the use to the sale, distribution, or advertising of a product
– Likelihood of consumer confusion

Assessment of Consumer Confusion
– Assessment of similarity when marks or products/services are not identical
– Likelihood of confusion measured by various factor tests
– Elements to measure likelihood of confusion (e.g., strength of the mark, proximity of goods, similarity of marks)
– Consideration of evidence of actual confusion and marketing channels used
– Impact of type of goods and purchaser’s degree of care, defendant’s intent, and likelihood of product line expansion

Defenses in Trademark Infringement
– Possibility of defeating infringement proceedings with valid exceptions or defenses
– Examples of exceptions (e.g., comparative advertising) and defenses (e.g., laches, non-use)
– Potential attack and cancellation of underlying registration
– Additional defenses include genericness, functionality, abandonment, and fair use

Global Perspective on Trademark Infringement
– ACTA trade agreement requires criminal penalties for copyright and trademark infringement
– In countries with common law, unregistered trademarks cannot be infringed, but other legal actions may be pursued (e.g., passing off, unfair business practices)
– Trade dress infringement may be actionable in some jurisdictions

Notable Trademark Infringement Cases
Facebook, Inc. v. Power Ventures, Inc.
Google, Inc. v. American Blind & Wallpaper Factory, Inc.
– Rescuecom Corp. v. Google Inc.
– Network Automation, Inc. v. Advanced Systems Concepts, Inc.
– College Network, Inc. v. Moore Educational Publishers, Inc.Summary:

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Trademark infringement