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Cause of Action for Trademark Infringement

Business and Commercial Torts : Cause of Action for Trademark Infringement

The law of trademarks is part of the broader law of unfair competition. The general purpose of trademark laws is to prevent one manufacturer form passing off his or her goods or business as the goods or business of another.  The doctrine of unfair competition is distinguished from the law of trademarks in that unfair competition, does not necessarily involve the exclusive right to the use of a particular name, symbol, or device.  Additionally, lawsuits for trademark infringement rest on the ownership of the trademark; where lawsuits for unfair competition arise from the damage caused to the complainant's business caused by the fraudulent passing off the goods of one manufacturer or dealer for those of another.

To state a claim for infringement of trademark a plaintiff must establish the following factors that demonstrate the infringement:

The degree of resemblance between the conflicting designations;

The similarity of the marketing methods and channels of distribution;

The characteristics of the prospective purchasers and the degree of care they exercise;

The degree of distinctiveness of the senior user's mark;

If the goods or services are not competitive, the likelihood that prospective buyers would expect the senior user to expand into the field of the junior user;

The extent to which the senior user's designation is known in the junior user's territory, when the goods and services are sold in different territories;

The intent of the junior user; and

Evidence of actual confusion;

In a cause of action for trademark infringement, it is not necessary to prove that the mark used by the defendant is identical to the plaintiff's trademark. It is sufficient to establish that the mark that the defendant has adopted is so much like that of the complainant's in form, spelling, or sound that even an individual without a definite and clear recollection of the real trademark is likely to be confused or misled.

A West Palm Beach unfair business practices lawyer, will advise a plaintiff that in order to recover relief for a claim of trademark infringement, he or she need not prove actual confusion or fraudulent design by the competitor. However, evidence of actual confusion is evidence of the likelihood of confusion.

A cause of action for unfair trademark infringement may have many complex issues. Therefore, you should consult with an experienced West Palm Beach unfair or deceptive business practices lawyer. Call Sharmin & Sharmin P.A. at 1-800-74-TRIAL.

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