WHAT IS TRADEMARK INFRINGEMENT?
A trademark owner can sue for trademark infringement if the alleged infringing party is using a mark in a way that creates a likelihood of confusion about the source of the alleged infringer’s product.
To determine whether there is a likelihood of confusion, some of the things courts will look at are the strength of the trademark; the similarity of the marks; the similarity of the goods and services at issue; whether there is evidence that consumers were actually confused; and the infringer’s intent in using the mark.
WHAT IS TRADEMARK DILUTION?
If a trademark is famous (i.e. Coca-Cola), a trademark owner can file a lawsuit against a defendant who uses the famous trademark in a way that dilutes the distinctive quality of the famous trademark. This can include using the famous trademark in a disparaging manner or using the famous trademark in ways that dilute the distinctive quality of the famous mark (i.e. selling “Coca-Cola cereal”).
WHAT ARE THE REMEDIES AND DAMAGES FOR TRADEMARK INFRINGEMENT AND TRADEMARK DILUTION?
The remedies available for trademark infringement and trademark dilution include injunctions, money damages, and costs. Attorney fees can be recovered in “exceptional cases.”
Monetary damages may be measured by the defendant’s profits or damages sustained by the plaintiff. If bad faith is proven, damages may be tripled.
WHAT ARE THE DEFENSES AGAINST TRADEMARK INFRINGEMENT AND TRADEMARK DILUTION?
Some of the most common defenses against trademark infringement or dilution (besides an argument there is no infringement or dilution) are fair use; parody; estoppel; and laches.