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What is Trademark Infringement?

Trademark infringement occurs when a consumer becomes confused as to who made a product or service and buys someone else’s product instead of yours. The standard for infringement is “substantially similar” and “likely to cause confusion.”

As an example, pretty much every product in the dollar store is on the verge of being infringing. Do you really think the bright orange bottle of laundry detergent called “Time” has the same stain-removal quality as the well-known, heavily marketed Tide laundry detergent from Procter & Gamble?

Although trademark law is thrown into the same category as copyright, patent and trade secrets (ie, intellectual property), those bodies of law protect creators of content. Trademark law protects the consumer.

Where you cannot copy or use other people’s work under copyright, patent and trade secret law, it is permissible to use other people’s trademarks without permission or license.

· You can truthfully compare products in advertising (Sahara paper towels pick up 98% more liquid than Marsh paper towels).

· You can truthfully identify a trademark in relation to your service (We repair Ford vehicles, service not available on Apple products).

· You can truthfully state you sell replacement parts, refurbished parts, are an authorized reseller or distributor.

· You can criticize a product or service.

· You can host a “gripe site” [].

When you do this, it is important that you are honest and have data to back up your claims. Remember, you are making a comparison to promote YOUR goods or services. Do not overly feature the logos or product images of your competitor, or that may be what the consumer remembers!


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