Protecting Your Company's Intellectual Property: A Practical Guide to Trademarks, Copyrights, Patents & Trade Secrets

The Test for Determining Trademark Infringement

The test used to determine whether one party's mark infringes that of another is whether the use is likely to cause confusion, mistake, or deception among the relevant consuming public. Actual confusion is not necessary; it is likelihood of confusion that is measured. The factors discussed in Chapter 4, used by the PTO in determining whether to allow a registration for a mark that is similar to another's, are the same as those used by courts in determining whether infringement has occurred. Furthermore, intent to infringe is not necessary. An innocent infringement is just as damaging to a trademark owner as an intentional one. Although the defendant's intent to infringe may play a role in assessing ...