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Trademark Infringement Basics

Trademark infringement occurs when an alleged infringer uses a trademark that is identical or confusingly similar to another's mark. When this occurs, the value of the perceived quality and goodwill built up in the mark may be negatively impacted. The issue with the use of an infringing mark is whether or not the public in the market of interest may be misled or deceived as to the true source of a good or service. If use of an identical or confusingly similar mark is likely to confuse or deceive the public, then the trademark owner may have a claim for trademark infringement. Not only are trademarks protected by federal law, trademarks are also protected by state law and common law. Common law trademarks are trademarks that are not registered either at the state level or at the federal level.

Either a registered or an unregistered mark may be infringed. Registration of a mark in the U.S. Patent and Trademark Office creates a rebutable presumption that the mark is legitimate and eligible for protection under the trademark statute. The federal Certificate of Registration that is issued to the trademark owner by the U.S. Patent and Trademark Office establishes the validity of the mark, its registration, and the registrant's ownership and exclusive right to use the mark in commerce.

Unregistered Marks

It should be remembered that not all marks are registered at the state or federal level. As previously mentioned, unregistered trademarks are, by definition, common law trademarks and are also legally protected. Thus, a valid unregistered mark does provide the owner of the mark trademark protection. However, an unregistered mark does not enjoy the legal presumption that the mark is protected by the trademark statute. The legal presumption that the mark is protected by the trademark statute is a formidable hurdle for the infringer to overcome during litigation.


It should be noted, however, that a business owner may become an innocent infringer, who sold goods without knowledge of a confusing similarity presented by the mark appearing on the goods. A business owner should be aware that it is no defense that he is an innocent infringer and someone else made the product that bears the infringing mark. Anyone who sells a product that bears an infringing mark is using it in commerce and is liable for trademark infringement, even if he acted in good faith. However, in the case of innocent infringement, money damages may, in some cases, be precluded and the plaintiff may be limited only to an injunction stopping future infringement.


Monetary relief for trademark infringement is based on defendant's profits, damages sustained by the owner of the trademark and cost of bringing the lawsuit. Injunctions are also a remedy for trademark infringement. The injunction will be to halt production and sale of infringing goods and services. Moreover, the court might also award a so-called "reverse injunction" for corrective advertising, by which the infringer will pay for advertising necessary to reverse the damage to the plaintiff's mark. In addition, knowingly copying another's trademark on goods or services is considered counterfeiting and is a felony punishable by fines and imprisonment.

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