Trademark infringement occurs when a uk trademark law is used by a third party in a way that infringes a trademark owner’s exclusive use of a trademark. Often, someone uses a similar mark in a manner that confuses consumers about the source of goods and services. For example, the name of a fast-food restaurant "Wendi" is probably confusion with "Wendy's”. Trademark name infringement can only occur when it is likely that consumers will be confused about the source of goods. The aim of this paper is to examine the test and the factors that courts uses to determine whether such a violation happens.
Many courts have developed a balancing test for determining whether a trademark violates on another. This balancing test has a lot of the leading case of Polaroid Corp. v. Polar elected. Corp., 287 F. 2d 492 (2nd Cir. 1961). In this case, the Court identified several variables to consider when determining whether a mark is to interfere in another brand. This balancing test is whether consumers are likely confused about the source of the brand. If the test favors that could result in confusion, the court will rule that trade mark brand infringement exists. On the other hand, if confusion is unlikely, or very little, the court rules against counterfeiting.
The following factors used by judges to assess the possibility of trademark infringement lawyer by the likelihood of confusion for consumers. None of these factors is controlled by the issue of consumer confusion, and each factor must be considered in relation to the final probability of confusion.
The first factor the court will consider the strength of the brands in question. The strength of the brand is determined by the distinctiveness of the mark. The most unique and distinct brand, the brand will be better protected against new users. However, descriptive and generic brand, the courts provide less protection to them. For example, the KODAK brand will receive more protection than a similar product that uses the speed dial PHOTOS.
Another factor considered is the similarity between the marks. The similarity of the marks is tested on sight, sound and meaning. The marks shall be considered as a whole to identify similarities. A brand that is different from the other, but it gives a similar printing business might be considered similar and therefore weigh in favor of confusion. For example, a trademark disputes consisting of the word money could be confused with the mark of $ $ $ because the brands have similar commercial impressions.
The courts will also consider the proximity of the goods on the market. This test concerns sales channels used by the goods. Similar products of the greater the likelihood that they coexist on the market. Related brands, which also could create confusion about the source of these goods. Related products are very likely to cause confusion with independent objects.
The above three factors weigh heavily in determining likelihood of confusion. A mark will not be found confusingly similar with another mark if the two are not found similar in one of these areas, and the complaining mark is considered a weak mark.
Having gone through these courts will consider the likelihood that the prior owner will "bridge the gap" on the market. This factor concerns the possibility that the brand will expand into other product lines. The expansion more likely will take place, the confusion among consumers most likely to exist.
Next courts examine the evidence of actual confusion. When the matter be brought to justice, the display is usually in the form of consumer surveys have divided. The research data of this nature is often a confusion violations crucial.
Courts will also look to sophisticated purchasers of goods or services to determine the risk of confusion. The courts have held that the sophisticated buyers who have expertise in a particular area are less likely to be confused by similarities in the marks. In addition, courts have held that consumers of goods and services that are expensive to exercise greater care to these buyers expensive. For example, a consumer more carefully when buying a car compared to when the consumer buys a piece of candy.
The final factor courts consider the case of trademark logo infringement is intended by the defendant. If a defendant copies of the existing trade mark in bad faith to use the mark of good will to find a violation of court favor. The risk of confusion is the most important in determining the violation, regardless of intent. If copies of the character that does not lead to mislead the consumer, the courts can not find a violation.
Above mentioned facts are not a rigid set of factors used by the courts. Most jurisdictions use some form of the above factors in determining whether a likelihood of confusion happens or not. Despite the different variants, ultimately the courts attempt to discover whether the marks used in commerce, causing confusion among consumers and lead to trademark infringement.
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