It is never easy to create a trademark that will bring your company to places or to ashes. But when you have finally organized everything from the name to the logo, it would be difficult to hear that someone else is trying to use the almost exact thing that you’ve spent a lot of time making. There have been many cases with regard to trademark infringement. Some of them didn’t mean to copy but some of them did. So how would you know if you are infringing and how would you know if your trademark is being infringed? The below points will answer both questions.
A Strength of the Trademark
There are considerations in knowing if a trademark is weak or strong. In an instance, if a mark is only descriptive without secondary meaning, it can be considered weak. On the other hand, if a mark is arbitrary, fanciful, or suggestive, it can be considered as strong.
It is also considered if a trademark belongs in a crowded field. This means that trademark making the same goods or services have features that are alike. It can be that parties have similar marks. But with this, it should have marks that are somehow different still from each other in the sense that it is not near similar to anyone in the group.
However, there are registered trademarks that are so well-known in the world that they can chase anyone who uses the same trademark even if the goods or services are different from what they offer. One example would be Pepsi. Because of their worldwide fame, others cannot use their trademark for, say, slippers.
Similarity of the Trademarks
To establish infringement, trademarks will undergo comparison in its wholeness. This means that this kind of examination by the experts will include appearance, sound, connotation, and commercial impression.
When trademarks are compared and they have close visual presentation even if they have different pronunciations and meanings, it can be considered infringement because it causes confusion for the consumers. This goes the same with a different appearance but having a close pronunciation or sound or connotation.
Similarity of the Goods/Services
As a standard or general rule of infringement, if a customer gets confused about buying one brand instead of the other, that can be a good case of infringement. An owner of a business who uses a trademark that is quite similar to someone else’s is allowed to do that in the case that they are both offering different goods or services.
Trademark protection given by the courts has the possibility to have an extension. For example, a trademark for a canned sardine has the possibility to extend to any canned fish. It is always considered if the public would think that the goods they’re purchasing come from the same company.
When a trademark is widely known, there is a huge chance that they are going to expand their goods and services. For an instance, it is difficult (actually, it’s not advisable) to use the prefix “Mc” as part of your trademark since McDonald’s has been using the prefix so much that the public would expect that they will expand into other goods or services such as McKids.
Advertising is also considered in knowing if there is an infringement going on. This is also examined as this can be a potential confusion on the part of the consumers. There can be an expectation on the part of the buyer that both car tires and motorcycle tires being offered by the same company with the same trademark.
It may not be considered as an important thing with regard to trademark infringement but proof of actual confusion can be used as convincing evidence in the case. There are instances when companies conduct surveys to signify confusion between trademarks if there are any. However, this kind of survey is expensive and might even cost the plaintiff to have his case overthrown.
An actual confusion would be customers calling the wrong company regarding a certain product or when they returned a product to the wrong address. Although this factor looks helpful, most of the time it is not really in the case of establishing infringement. They can settle the case by stating that the marks merely have a short coexistence or they are in dissimilar settings, so there may have been no chance for confusion to occur.
It is always important that you register a trademark as soon as possible. Regardless if you are still a small business, it is not a good thing to see somebody else using the same brand name or trademark that you have and claiming them as their own. You are putting yourself in a good position if there will be an infringement case that might arise in the future.
For any assistance with regard to brand registration in Dubai, FAR Consulting Middle East can offer you a free consultation on that matter.