Tuesday, January 16, 2007

How to Determine Trademark Infringement?

This post was inspired by all the hullabaloo caused by the iPhone (who owns it? Apple? Cisco?).

Determining if marks infringe can be tricky and each situation varies from another.

The general rules to keep in mind are:

1) Are the names similar in Sound, Appearance or Meaning?

2) Are the industries the same or similar to one another?

3) Are the names confusingly similar to the average consumer? In other words, could customers be confused and assume that both companies are affiliated?

4) Do the trade areas cross? What about the advertising routes -- are the products/services advertised in common places?

Here's what the
USPTO has to say about this matter:

"The principal factors considered by the examining attorney in determining whether there would be a likelihood of confusion are:

the similarity of the marks;
the commercial relationship between the goods and/or services listed in the application.

To find a conflict, the marks do not have to be identical, and the goods and/or services do not have to be the same. It may be enough that the marks are similar and the goods and/or services related."

If you find yourself trying to determine if a similarly named company is going to be a problem, it's best to contact a private search company or a trademark attorney.

What is Conflict? What is a Strong Similarity?
Trademark FAQ

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