Trademark infringement generally refers to the unauthorized use of a sign that is identical or similar to someone else’s trademark, and such use may cause consumer confusion, leading them to mistakenly believe that the product or service comes from the trademark owner. Specifically, the elements that constitute trademark infringement mainly include the following:
- Existence of trademark rights: The party being infringed upon must possess valid trademark rights, which are typically registered trademarks or unregistered trademarks that meet certain conditions. The trademark owner must prove that they have legal protection for a specific trademark.
- Use of identical or similar marks: The mark used by the defendant must be identical or similar to the trademark of the rights holder. This similarity can cause consumer confusion. The similarity of the trademark includes visual, phonetic, and conceptual similarities, which are usually judged from the perspective of the “overall impression.”
- Similarity of goods or services: The defendant’s use of the mark must apply to goods or services that are similar to or the same as those of the trademark owner, increasing the risk of consumer confusion. If the difference between the goods or services is significant, it may not constitute infringement.
- Likelihood of confusion: The rights holder must prove that the defendant’s actions are likely to cause confusion among consumers, leading them to mistakenly associate the product or service with the trademark owner. Confusion includes “source confusion” and “association confusion.”
- Use without justification: If the defendant cannot provide a reasonable explanation or prove legitimate use, such as non-commercial or good-faith use, it is more likely to constitute infringement.
Typical Trademark Infringement Situations
- Counterfeiting: Directly using another party’s trademark on goods to pass them off as products of the trademark owner.
- Imitation: Using a similar mark, causing consumer misunderstanding about the source of the product.
- Confusing advertising: Using another party’s trademark or a similar mark in advertising, leading consumers to mistakenly believe the product or service’s origin.
Exceptions Where Infringement Does Not Apply
There are certain situations where use does not constitute trademark infringement, such as:
- Good-faith descriptive use: Using a trademark to describe the characteristics of a product rather than to identify its source, such as using “apple” to refer to the fruit.
- Fair use: Using a trademark for academic, journalistic, or commentary purposes.
Examination and Penalties
Trademark infringement disputes are usually resolved through administrative agencies or courts. The trademark owner may seek remedies such as stopping the infringement and claiming damages through litigation.
