In many cases there is no real clear cut way to know if you are committing Trademark Infringement. Sometimes people are blatant and obvious when they commit trademark infringement. Often times you may think you are, but a judge may feel that you aren’t. Other times you may think you aren’t, when you really are.
An experienced Trademark Attorney can give you an opinion regarding potential trademark infringement. However, only a judge will actually be able to decide. When an attorney reviews the facts of the case he will use the following factors to determine Trademark Infringement.
Likelihood of confusion
The degree of similarity between the trademarks and how likely the similarity is to create confusion among consumers. Is there a similarity in where the products are sold and marketed. How similar the products are to each other. Any evidence of actual confusion by consumers relating to the trademark or products. An example of this would be if you were to make shoes and put the nike swoosh on them backwards or upside down. It wouldn’t be using the exact Nike mark, but would be easily associated with Nike.
If a mark is used and it decreases the value of another mark, or damaging the reputation of a trademark. Dilution applies more to famous marks that could easily be confused if used for an industry not usually associated with the famous marks. For instant, Nike is most commonly associated with clothing and sports wear. If a company was to start a motor oil company called Nike, many people would assume that Nike, the clothing company, was now making motor oil.
If you have any questions or concerns, it is highly advisable to contact a trademark attorney with questions. Take advantage of our free consultation.