Trademark infringement.  Trademark infringement is the unauthorized use of a trademark or service mark that is likely to cause confusion about the source of the goods or services.  Under federal law, a cause of action for trademark infringement is governed by Section 2(d) of the Trademark Act (15 USC Section 1114).

A trademark owner that believes that its mark is being infringed may bring a cause of action for trademark infringement in U.S. federal court.  If the trademark owner is successful in proving infringement, the remedies available to it may include the following:

• a court order that the infringer stop uses its mark
• an order that the infringer destroy its merchandise bearing the infringing mark
• monetary damages
• attorney's fees

Trademark infringement test.  The various factors that courts consider in determining whether a likelihood of confusion exists for a finding of infringement include:

• similarity of the parties' marks
• similarity of the goods or services
• similarity of trade channels
• sophistication of the purchasers
• strength of the plaintiff's mark
• evidence of actual confusion
• the nature and extent of similar third-party mark
• likelihood of the senior user bridging the gap

Not all of the above factors are inclusive.

Checklist.  If your company is a trademark owner, or has received a cease and desist letter or a complaint for trademark infringement, you may speak with James Hastings to discuss the options available to you to bring or defend your case.