What is trademark infringement?
I know you’ve heard of a trademark. And you’ve probably heard of trademark infringement. But do you know what it actually is? Sure, trademark infringement could be when another business uses the same name of your business. However, it is MUCH MORE than that!
The United States Patent and Trademark Office (USPTO) defines trademark infringement as “the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.”
Okay, Andrea, that’s great. What does that even mean? Let’s break it down!
In connection with goods and/or services
This is an important concept with trademarks. If you have a clothing company and you find a yoga studio with the same name as your brand, that’s most likely not trademark infringement. The USPTO registers trademarks according to different classes of goods and services. There are 45 different classes. In order to amount to trademark infringement, the goods or services must be related. This doesn’t necessarily mean that the goods or services have to fall under the same class, but they do have to be related.
For example, there is a difference between a trademark for retail store services and the apparel that you actually sell in your store, but the two are still potentially related. If you have a clothing line with the name “Teddy’s Looks,” (That’s completely random. My dog’s name is Teddy and he’s sitting right here next to me.) and someone tries to come along and name their apparel store “Teddy’s Looks,” that is potentially trademark infringement. This is just one example of how goods and services can be related but not be in the same class.
As a real-life example for the same name but unrelated goods, take a look at the Delta companies. There is certainly Delta, the airline service, but there is also Delta, the faucet company. The two companies are very large, and they have the same name. But the goods and services they provide are completely unrelated, so there is no trademark infringement.
Likely to cause confusion, deception, or mistake
Here’s where it gets interesting. Most people think they’re relieved from trademark infringement as long as they change the spelling, add a word, or remove a word from the mark in question. But, that’s not the case. Your mark may infringe on another mark if it causes confusion with the other mark. What type of confusion? Consumer confusion! Trademarks are in place in order to protect the branding of a company.
Consumer confusion can occur in a number of ways. And consumer confusion doesn’t even have to actually happen to prove trademark infringement. If the confusion, deception, or mistake is likely to occur, then it’s trademark infringement.
Let’s go back to “Teddy’s Looks.” If there is a clothing line or a store with the name “Teddy’s Clothes,” that could potentially be trademark infringement. This is because the goods and services are related (clothing), AND someone could potentially think Teddy’s Clothes is the same business as Teddy’s Looks.
It can be pretty challenging to prove trademark infringement if the potential of confusion is not obvious. However, what may not be obvious to you may be obvious confusion to a trademark attorney. This is why it’s incredibly important to run an official trademark search. A search can relieve a large amount of stress if you’re not sure if you’re infringing on someone else’s trademark. I’ve said this many times before, but it’s worth repeating. A GOOGLE SEARCH IS NOT SUFFICIENT! Yes, a Google search can uncover the clear-cut case of trademark infringement, but your Google search most likely won’t uncover the close calls. And the close calls are what will come up down the road and cost you thousands of dollars in rebranding.
Spend the few hundred dollars now to run an official search and provide yourself with the comfort knowing you’re not infringing on a trademark.
If you’d like more information on conducting a trademark search, shoot me an email – andrea@andreasager.com.
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