FLORIDA TRADEMARK LITIGATION ATTORNEY
As an overall trademark philosophy, the trademark attorney for the first user of a trademark (called the “senior user”) is able to enforce trademark rights and halt a subsequent user of the trademark (called the “junior user”). Let Tucker IP present your best trademark infringement or trademark non-infringement case to settle your case, or if necessary, present your case before a judge or jury. The firm’s experience and understanding of the complex trademark laws put clients in a position to obtain a beneficial outcome.
It is important to regularly police and enforce your trademark rights. When others infringe upon your trademark rights, the dilution of your mark reduces the identity of the mark to your goods and services, and reduces the strength of the mark. Eventually, a trademark could be diluted to the point that enforcement is difficult or impossible. Let Tucker IP protect the strength of your trademark!
DEFENSES TO TRADEMARK DILUTION
There are many defenses that exist that allow a Defendant to use a trademark without diluting the strength of the mark, such as noncommercial use, news reporting, and comparative advertising.
In order to enforce the dilution of your trademark rights, the mark must be used in commerce. Noncommercial use of a trademark does not dilute a trademark holder’s rights.
The use of a trademark for news commentary or journalist purposes is exempt from a trademark suit alleging dilution.
Comparative advertising is not considered to be dilution of a trademark. However, there are many cases where the Defendant modified the mark, even slightly, which resulted in a finding of trademark dilution.
LIKELIHOOD OF CONFUSION
The primary purpose of trademark laws is to prevent consumer confusion, and also to prevent competitors from taking advantage of the good will established by the trademark owner.
In assessing whether a likelihood of confusion exists, a court will analyze factors such as:
- Strength of the Mark – This factor looks at the strength of the mark because trademark law provides greater protection to strong trademarks versus weak trademarks. Trademarks can be categorized as Fanciful, Arbitrary, Suggestive, Descriptive, and Generic, from strongest to weakest. For example, fanciful marks are “coined” or invented for the sole purpose of existing as a trademark. NIKE, GOOGLE, and M&M’s are famous examples of coined terms that have the strongest of protection. On the other side of the scale, Descriptive trademarks are weak and therefore can be tougher to enforce.
- Relatedness of the Goods – Whether the goods are in too close in relation to the goods on which the mark is used is factored in to determine the likelihood of confusion and can heighten the danger of consumer confusion. Geographic
- Similarity of the Marks – This factor looks to the appearance of the marks by adjudging the appearance, sound, and meaning of the marks. Similarities are given more weight than differences.
- Evidence of Actual Confusion – Evidence of actual consumer confusion is certainly a persuasive factor to prove that confusion exists or that future confusion is likely. However, the failure to prove actual confusion is not dispositive and will not prevent enforcement of trademark rights.
- Marketing Channels Used – This factors looks at how the products are sold. Is the allegedly infringing mark selling in the same marketplace, such as Amazon or eBay? Or is the infringing mark in the same trade magazine, displaying on the same Google searches, or the like. Overlapping marketing channels tends to factor towards infringement.
- Likely Degree of Purchaser Care – This factor looks at the sophistication of the customers and the likelihood that purchasers will exercise care when selecting a product. The cost of product is believed to affect the amount of care by a purchaser because consumers typically exercise greater care in selecting and vetting products and services that are expensive.
- Defendant’s Intent in Selecting the Mark – This factor looks at whether the facts support a finding that the Defendant intentionally traded on the good will of the trademark at issue. It is important to note that Courts typically find that a Defendant intended to select the infringing mark when the Defendant fails to defend itself against an allegation of trademark infringement.
- Likelihood of Expansion of the Product Lines – This factor looks at whether the marks are in different classes of goods, but also whether the Defendant may, based on the product line, expand into other products that could cause a likelihood of confusion.
Contact the Firm
Tucker IP focuses a portion of its Fort Lauderdale services on the practice of trademarks. If your business needs a Trademark Attorney serving Fort Lauderdale, contact Trademark Attorney Matthew Sean Tucker at Tucker IP. A firm attorney is available to meet throughout Fort Lauderdale. Tucker IP serves clients throughout South Florida, including West Palm Beach, Fort Lauderdale, Boca Raton, Miami-Dade, and Orlando. Call the Firm toll-free at 1-844-4-TUCKER or send us an email through the Firm’s website. Thereafter, a firm Patent Attorney serving Fort Lauderdale will contact you for a free consultation.
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