What Is Trademark Infringement?

What is a trademark? When you see a phrase, word

, or symbol that identifies or characterizes a certain product and separates it from another, that is trademark. When services, rather than products, are given marks, they are referred to as service marks. The purpose of trademarks and service marks is to prevent confusion among consumers as to the source of goods and services. Marks must be sufficiently dissimilar to not only prevent consumers from mistaking the source of goods and services, but also to prevent a mistaken belief that one company is affiliated with, connected to, or approved by another company. In the U.S., trademarks are protected by federal law.

For a mark to be a symbol of a trade, certain criteria must be satisfied to ensure that the mark adequately represents a certain product. Courts usually distinguish trademarks according to five basic categories:

1. Fanciful or abstract - Fanciful or abstract marks have no obvious connection to the goods or services they represent. They are created for no reason other than to serve as trademarks. For this reason, they are considered to be very distinctive and will be afforded a high degree of protection.

2. Arbitrary - An arbitrary mark is a pre-existing word that has no direct relation to the product or service being offered, and does not describe them in any way. These are also considered to be highly distinctive, and so receive a high degree of protection.

3. Suggestive - A suggestive mark suggests an inherent quality or characteristic of the goods or service, but do not actually describe them. Typically, suggestive marks do not receive protection without having developed a secondary meaning.

4. Descriptive - Marks that are suggestive have a direct relation to the product or service being offered or directly describe an inherent quality or characteristic. A "secondary meaning" is typically required in order to receive any protection at all.

5. Generic - Generic marks are not able to receive protection, because they are nothing more than the generic term used to name the product or service. "Computer" or "coffee maker," for example, each simply offers the generic word for the item, with nothing distinctive to set apart the source.

A trademark owner is only granted rights to use the mark if he or she is the first to have used the mark in the market and the first to register the mark with the U.S. Patent and Trademark Office. Once registered, a trademark owner can sue another party for trademark infringement if the other party's mark causes confusion to customers. Different remedies are available to the plaintiff in trademark infringement cases, including injunctions to prevent use of the mark in the future, as well as monetary compensation for the profit gained by the infringing party, the profits lost by the trademark owner, and litigation costs.

In Texas, Kathryn Snapka has successfully represented clients in trademark infringement and other commercial litigation cases. Interested parties can call (361) 888-7676 or toll-free at (866) 888-7676to learn more about the business matters handled by the Snapka Law Firm.

by: Priscilla G. Nelson

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