What Is Trademark Infringement?
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Trademark infringement is another word for the use of a mark by a junior party that is likely to cause consumer confusion with a senior party’s mark. In that situation, a court finding a likelihood of confusion between the marks would also find that the junior party’s mark infringes on the senior party’s mark.
For details about the likelihood of confusion test, please view our guide "When Is There a Likelihood of Confusion Between Two Marks?" The remedies that the prevailing party is entitled to vary based on the court where the dispute is brought.
At the United States Patent & Trademark Office’s Trademark Trial and Appeal Board, an administrative tribunal, the only issue at stake is registration – whether a pending application can be registered (either via an “opposition” proceeding if contested between two parties or via an ex parte appeal of a registration refusal from an Examining Attorney), whether an existing registration should be cancelled (via a “cancellation” proceeding), or whether registration rights should be granted to two users in different geographic areas (a “concurrent use” proceeding).
In federal or state court, the stakes may be higher: the prevailing senior party can each enjoin (prevent) the junior user from using its mark, or receive monetary damages. Registration rights may also be at issue: a federal court can order the USPTO to cancel an existing registration or to deny a pending application.
To the extent that the Trademark Trial and Appeal Board fully vets and decides an issue, a later district court tasked with deciding the same issue will be bound by that outcome, as a 2015 Supreme Court case clarified. B&B Hardware Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293 (2015) (applying issue preclusion).
- What Jurisdictions Are Available for Searching?
- What Is a Trademark?
- What Factors Go Into Picking a "Good" Trademark?
- How Much Are Trademarks Worth?
- What Is the Difference Between a Trademark, a Copyright, and a Patent?
- How Do I Get Trademark Protection?
- Why Should I Do a Clearance Search for a Trademark?
- What Is the Benefit of Registering a Trademark With the USPTO?
- What Is the Cost To File a Trademark Application?
- What Is an International Class In a Trademark Application?
- What Are Goods and Services In a Trademark Application?
- What Does an Examining Attorney Look For When Reviewing a Trademark Application?
- When Is There a Likelihood of Confusion Between Two Marks?
- What Is an Acceptable Specimen of Use?
- What Is the Difference Between the Principal Register and the Supplemental Register?
- How Long Does It Take To Register a Trademark?
- How Long Does a Trademark Last?
- What Is the Madrid Protocol?
- What Is the Nice Agreement?
- What Is the Paris Convention?
- How Do I Properly Use My Trademark?
- How Do I Protect My Trademark?
- What Trademark Symbol Should I Use?
- What Is Trademark Infringement?
- How Do Trademark Rights Relate to Domain Names (and What Is a UDRP)?
- How Do Trademark Rights Relate to Business Name Rights?
- How Do I Form a Business Entity?