A court will assess the similarity of brands in light of the way they are in the market and the circumstances surrounding their purchase. The tests may include the relevant market in which the two products are sold, the type of business for which the brands are used, the advertising methods employed by the two parties, and the location where the respective products can be found in stores. Using a very similar mark on the same product can also result in an infringement lawsuit, if the brands are close enough in sound, appearance, or meaning to cause confusion. Proof of trademark infringement is a general term for several factors that courts use to assess confusion.
The similarity of markings is clearly an important part of establishing the likelihood of confusion, but it is far from decisive. Thus, for example, when brands are similar and products are similar, it will be difficult to determine if the consumer is likely to confuse. In general, when analyzing this factor in a trademark infringement test, a court will apply the standard of the typical buyer exercising ordinary caution. Thus, for example, a cereal manufacturer may describe its cereal as consisting of all bran, without infringing Kelloggs' rights to the All Bran brand.
Similarly, in one case, a court held that the defendant's use of fried fish to describe a layer of fish batter was a legitimate use and did not infringe Plaintiff's Fish-Fri trademark. The most common form of relief awarded to a successful plaintiff in a trademark infringement lawsuit is a court order against new infringements. Thus, for example, the use of an identical mark on the same product would clearly constitute an infringement. Because there were similarities in sight and sound, the court found that brands were likely to confuse customers.
For example, it was determined that the use of the Lexus brand in cars does not confuse consumers of Lexis database services. In addition to filing an infringement action, trademark owners can also file a trademark dilution lawsuit under federal or state law. To be more specific, the use of a trademark in connection with the sale of a good constitutes an infringement if it is likely to cause confusion to the consumer as to the source of those goods or as to the sponsorship or approval of such goods. To support a trademark infringement claim in court, the plaintiff must show that he owns a valid trademark, that he has priority (his rights to the trademark or marks are greater than those of the defendant), and that the defendant's trademark is likely to cause confusion in consumers' minds about the source or sponsorship of the products or services offered under the parties' brands.
The similarity of brands is determined by the sight, sound and meaning used in relation to the products or services.
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