Trademark is an essential asset for a company to promote their brands and develop communication with their customer base. Trademark violation is the unauthorized use of someone else’s trademark or service mark. So, it becomes important for one to make sure that no one violates their trademark. Businesses that trade goods use trademarks to protect their brand identity. So, before using trademark for business purpose, one must search the trademarks in the USPTO database using TESS search system to avoid trademark violation. If someone violates trademark he will have to pay damages to the trademark owner which can result in a huge financial loss.
Also read: Global Trademark Search and its significance
Trademark Violation: Key points to remember
A trademark violation does not necessarily involve an exact duplication of another company’s name or logo. Colors, words or even sound can be similar to other company’s symbol thereby violating the trademark rules. This creates confusion among consumers while buying a particular product. We will discuss some of the important factors that contribute to the trademark violation.
Also read: Trademark Filing: A Step by Step Process
Strength of the Senior Mark:
A senior mark is the one for which the registration took place first. The more the senior mark is distinctive, the more it becomes protective. If there are two similar trademarks then the user with a senior mark will win over the case of trademark infringement. The user that is senior will expand into the junior mark services of goods and products.
Proximity of the Goods:
The proximity of a product does not mean that the products are in the same industry. Rather it means that the consumer thinks of the two products having some connection. Also, there could be a misconception that the two products are of same company. If the products compete directly then the confusion is likely if the marks are similar. Otherwise, the confusion will turn on other factors.
Similarity of the Mark:
This is a factor that the courts usually accord greater weight. The court will look at the pronunciation, appearance and verbal translation of the mark. It will look to see if the given mark would confuse the public when one views it in isolation. Also, the court will view the mark in its entirety, not by its individual features. If it sees the trademark violation happening, then further steps would be taken to resolve the issue.
Evidence of Actual Confusion:
One of the most important factors of trademark violation is evidence of actual confusion. The existence of actual confusion is evidence that the products in their actual market context have similarities sufficient to create confusion. One will only weigh this factor when there is evidence of past confusion or when circumstances indicate of such evidence being available.
Let us take the example of Paypal and Paytm. When we go to buy a product at a store like shampoo, clothes we look at the company’s brand name. Now, let us come back to our main discussion the legal battle of PayPal vs. Paytm over the Trademark objection. PayPal is an American company operating payments online. It was founded in 1998 way before Paytm came into the picture. Yet Paytm is a household name in India where PayPal is not.
The case started on 18th November 2016 when PayPal inc. filed an objection against Paytm for using the logo similar to them. For past couple of years Paytm and PayPal were coexisting in the same market. It is only after the popularity of Paytm that PayPal filed an objection against Paytm. The objection was made of Paytm copying the name as well as the logo of PayPal.
Both the brands start with word ‘pay’ and both are related to online payments and transactions. Secondly, the logo of both the companies is made of same color combination. In a glance, anyone can get confused between the 2 logos.
So, one should not make any mistake which will result in infringement. It will indirectly cost you both the time and the money.
Marketing Channels Used:
The court will assess the similarity of the marks in light of the way one encounters in the marketplace. The circumstances surrounding their purchase will also be seen while assessing two similar trademarks.
Evidence may include the relevant market in which the two products get sold and the type of business that the marks use. The evidence also includes the method of advertisement by the two parties and the location where the respective products are found.
Also read: Why do you need to do trademark monitoring?
Looking for Trademark Registration? – TMReady
Now a day it is essential for one to make sure that he is not violating any of the trademark rules. So, trademark search plays a crucial role here in the trademark filing process. TMReady provide clients with the world-class trademark search electronically in minimal time. You invest a lot in building your brand by creating logos and applying for trademarks. Before you put this effort, you need to make sure that it is in the right direction. At the TMReady, our aim is to let you focus on building the right brand through a comprehensive trademark search. Our team provides you with the most flexible and widest coverage at a lower price. TMReady makes sure of 100% satisfaction to our clients without compromising on the quality of work. To avail our services, Visit TMReady.