Under what form of trademark law can you file a suit for infringement?
A trademark is a phrase, name, sign or tool which is used in trade with goods or services to signify the source of the goods and to distinguish them from other goods and services. So for example the Nike swoosh and Tommy Hilfiger flag are both examples of distinctive trademarks. Trademarks in the United States are protected by both state and federal regulation under a host of policies and regulations; the overarching laws which protect trademarks are called intellectual property laws. Intellectual Property law also covers patents, copyrights, trade secrets, trade dress and industrial design rights. Violations or infringements of an organizations trademark can be remedied in a number of ways, up to and including lawsuits for trademark infringement. However certain criteria need to be met regarding the trademark before a violation can be constituted as an infringement. Some of these prerequisites that need to be met before filing a trademark grievance under intellectual property law are:
- Likelihood of confusion – This means the use of a trademark in connection with the sale of goods or services constitutes infringement if it is likely to lead to consumer confusion as to the source of the goods or service. When making this determination the following factors are considered:
- The strength of the brand
- The market proximity of the goods
- Similarity of the marks
- Evidence of confusion
- Similarity of marketing channels
- Intent of the accused trademark violator
So for instance lets take a look at a hypothetical example:
Windows is a trademark of Microsoft Corporation but they do not have monopoly on the use of the word windows, since it is a generic term. However another computer software company cannot create software that does exactly the same thing or something similar and put the windows logo on it or call it windows (or a slight variation of it), this would be likely to cause consumer confusion and thus constitute trademark infringement.