Since trademarks help provide recognition for businesses and corporations in New York, it is in your best interest to protect your trademark if you suspect another party is using a trademark that is so similar to yours that your clients may confuse it for the one you own. If you take the infringing party to court, a judge will look over a number of factors to determine if the other party is guilty of infringement.
According to the U.S. Patent and Trademark office, one of the things a judge will look for is how strong your trademark is. If your trademark is distinct enough that it is reasonably difficult to come up with a mark that looks like yours, a judge will likely rule your mark as being infringed upon. On the other hand, a judge is less probable to rule in favor of a trademark that is too simple or general in appearance.
A judge may also inquire about the goods or services that you and the infringing party sell or offer. The similarity of what the two parties offer can be an important factor. If clients see that the goods and services offered are similar, they might assume they come from the same company, or perhaps from the wrong company, thinking your client is offering your exact product and vice versa.
You do not even have to argue trademark confusion as an issue. The trademark of the other party might harm your trademark in a different way, by damaging the distinctiveness of your mark. With the presence of the other mark in the market, clients will be less likely to think of your company when they see the trademark, and your company’s name awareness will be diminished.
Additionally, the other party might be using their trademark in a crude or juvenile manner. Many New York companies want to project a mature, welcoming and efficient image to their clients. However, a trademark used in an offensive manner may turn off clients who think the mark belongs to you.
The other party could argue that no one has come forward to claim that he or she was confused by the two trademarks. It is true that a lack of actual confusion could impact your case. However, while a judge might be more convinced if people testify to being confused, it does not have to sink your argument, as a judge will still take other factors into consideration.
Be aware that while this article is written to educate New York residents on white collar crime, it does not offer any legal advice.