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What Is Trademark Infringement

Get To Know Trademark Infringement With Trademarkia

Lindokuhle Mkhize

Lindokuhle Mkhize

18 October 20233 min read

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trademark infringement

In today's digital landscape, trademarks hold immense value. That's why we've created a simple guide to help you grasp the concept of trademark infringement. We'll touch on its consequences and the legal remedies available. After reading this, you'll learn how to protect your brand from potential infringement.

Trademark infringement explained

Trademark infringement happens when someone uses a trademark without permission.

Sometimes, this leads to confusion about the source of goods or services. It's a violation of the exclusive rights held by the trademark owner. Since trademarks are vital for brand identification and reputation protection, ensuring solid legal protection is critical.

Now, let's unpack trademark infringement and how it empowers businesses to safeguard their IP rights proactively.

Trademark infringement claim criteria

To support a trademark infringement claim in court, a plaintiff must establish that:

  • They hold a valid mark.
  • They have precedence.
  • Consumers may get confused about the source of the goods or services sold.

Remember that using the same or a similar trademarked name in an unrelated business might be permissible. But, there should be evidence that it doesn't lead to customer confusion. 

Whenever a defendant is the owner of a principal register federal trademark registration, several rights are legally presumed, such as:

  • The validity and ownership of a mark.
  • The sole right to utilize the mark internationally.
  • The sole right to employ the mark in connection with the products or services specified in the registration.

This is because this type of registration grants trademark protection under United States law. This presumption can help avoid attorney costs as well as an infringement lawsuit.

Consequences of unauthorized use

Legally speaking, the trademark owners can institute a civil lawsuit against the infringer. They can seek damages and an injunction to prevent unauthorized use. The penalties for trademark infringement can be quite severe. This includes substantial monetary damages and even imprisonment in some cases.

Grasping the repercussions of unauthorized use allows businesses to take preemptive measures. These measures can help sidestep expensive legal disputes like litigation.

Key factors in identifying trademark infringement

Identifying trademark infringement involves assessing various factors. This includes the likelihood of confusion and similarity between marks.

Likelihood of confusion

The likelihood of confusion is a central factor in trademark infringement cases. It determines whether the average consumer would be confused by the allegedly infringing mark. The benchmark used to establish if there is a probability of confusion between two trademarks is known as the Lapp test.

Courts take into consideration factors such as:

  • the similarity of the marks
  • the similarity of the goods or services
  • the strength of the plaintiff's mark
  • the likelihood of confusion among consumers

Although proof of actual confusion is not necessary, it can be a powerful piece of evidence in an infringement case. This is especially so when consumer confusion is involved.

Similarity between marks

Determining the similarity between marks in trademark law involves considering factors such as:

  • Appearance
  • Sound
  • Connotation
  • Commercial impression
  • Relatedness of products or services
  • Strength of the mark
  • Evidence of actual confusion
  • Price of the goods

Possible defenses against trademark infringement

Other possible defenses against trademark infringement claims include:

  • The "innocent infringer" defense 
  • The "prior use" defense

The innocent infringer defense can be raised by a defendant who is unaware of and doesn't intentionally infringe on a trademark. The prior use defense allows a party to assert that they had been using an identical or comparable mark on the same or related goods prior to the alleged infringer.

Understanding these and other potential defenses lets businesses navigate trademark law more efficiently. It also helps them protect their valuable intellectual property rights.


What is considered trademark infringement?

Unauthorized use of a trademark constitutes trademark infringement. This can lead to consumer confusion and potential deception. It can occur when a brand steers too close to another's mark without permission, resulting in legal consequences.

What are 3 things that determine trademark infringement?

To determine trademark infringement, a plaintiff must prove three elements. This includes:


  • Ownership of a valid trademark.
  • Unauthorized use by the defendant in commerce.
  • The probability that the defendant's use will generate confusion.

What is the burden of proof for trademark infringement?

In trademark infringement cases, the plaintiff has the burden of demonstrating the likelihood of confusion regarding the origin of the defendant's goods or services.

What is the penalty for trademark infringement in the US?

Trademark infringement in the US can lead to a fine of between $1,000 and $2 million. Although it depends ultimately on whether the violation was intentional.

What are the benefits of federal trademark registration?

Federal trademark registration offers numerous benefits. This includes enhanced protection against infringement and the ability to file injunctions in federal court. It also enables the licensing of the mark for financial gain.

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Lindokuhle Mkhize, a skilled creative copywriter and content lead at Trademarkia, brings a wealth of experience in driving innovation and managing teams. With previous success in starting and growing the Innovation and Marketing department at her former creative agency, Lindokuhle boasts expertise in leadership and delivering compelling content. Based in South Africa, Lindokuhle's work focuses on key themes of creativity, effective communication, and strategic marketing.