Copyfraud and Other Abuses of Intellectual Property Law by Mazzone Jason

Author:Mazzone, Jason [Mazzone, Jason]
Language: rus
Format: epub
Publisher: Stanford University Press
Published: 2011-10-04T20:00:00+00:00

INFRINGEMENT, FAIR USE, AND THE FIRST AMENDMENT

Infringement of a trademark occurs when someone other than the trademark owner uses a mark in a way that is likely to confuse consumers about the origin (or sponsorship or approval) of his or her goods or services.14 An owner of a trademark who establishes infringement can obtain an injunction to halt the unauthorized use of the mark as well as monetary relief in the form of the damages sustained and the defendant’s profits, and in some instances costs and attorneys’ fees; if the defendant acted in bad faith, the plaintiff can obtain treble damages.

Likelihood of confusion is the central element of a trademark infringement claim. To prevail, the trademark owner must demonstrate the likelihood that consumers will be confused or deceived about the origin or source of a product (or about sponsorship or approval of the product). For example, if Continental Grain wants to stop an airline from calling itself Continental, it would need to show that consumers are likely to be confused into thinking that the grain company had branched out into the airline business.

In evaluating a likelihood-of-confusion claim, courts consider a variety of factors, including the distinctiveness of the plaintiff’s mark, the degree of similarity between the marks, the proximity of the parties’ products or services in the marketplace, the likelihood that the plaintiff will enter the defendant’s market, evidence of actual confusion, whether the defendant acted in good faith, and the sophistication of the buyers. To take a simple example, if Nike’s competitor attaches the Nike swoosh to its shoes, it has probably infringed Nike’s trademark: the mark is arbitrary (Nike is the Greek goddess of victory) and therefore highly distinctive, and consumers are likely to believe Nike is the manufacturer of the competitor’s products, which are in the very same market in which Nike sells. Not every use of the same or a similar mark is infringement, however. If goods designated by the mark are sufficiently different from the trademark owner’s own goods that there is no likelihood of consumer confusion, there is no infringement of the trademark. If I market Snapple Dog Shampoo, consumers will probably not imagine that the tea company has begun selling canine grooming products, and I have probably not infringed the trademark in Snapple Tea. (There are, however, courses other than infringement that the owner of the trademark might take to prevent others from using the same or a similar mark, as this chapter will show.)

In the same way that copyright law deems fair uses of copyrighted works non-infringing, trademark law also acknowledges the fair use of trademarks. There are two types of trademark fair use. The first, descriptive fair use (sometimes called classic fair use), exists when a descriptive term is used not in a trademark sense, that is, not to designate source, but to describe the goods or services of the user.15 An example helps demonstrate this point. As we have seen, a mark that is merely descriptive of a product does not ordinarily qualify for trademark protection because it is not distinctive.

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