TRADEMARK INFRINGEMENT A trademark can be infringed even if the infringer is not using an identical mark. Trademark infringement occurs when another trademark is confusingly similar to the original trademark. Whether the two trademarks are confusingly similar depends on a number of factors, including: • The existence of actual confusion in the marketplace between the trademarks; • Similarity of the appearance, sound and meaning of the trademarks; • Similarity of the goods and services being identified by the trademarks; • The degree of secondary meaning acquired by the trademarks; • The sophistication of the consumers who buy the particular products or services; • The similarity of the channels of distribution of the products or services (that is, are they both sold in the same types of stores): • The degree of commercial competition between the two trademark users; and • The distinctiveness of the trademarks (that is, are they somewhat descriptive or are they arbitrary and fanciful).
39
Made with FlippingBook - Online Brochure Maker