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.
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.