In any trademark lawsuit, the plaintiff must show more than the similarity of the trademarked image or phrase to prove infringement. The senior user (the first company to use the trademark) must also prove customer confusion and intent.
Customer confusion is based on the reasonable belief that customers in your target audience would have trouble distinguishing merchandise between the two companies. Without interference, customer confusion can lead to lost profits and lost consumer confidence in your brand.
The junior user’s intention is also important to your trademark case. If a company knew, or should have known, about a trademark, then their negligence could work against them in court.
How Do I Prove Trademark Infringement?
You can establish these elements by asking several simple questions:
- How similar is the merchandise?
- Are both products being marketed to similar audiences?
- Did the junior user (the infringer) intend to infringe?
- Did the junior user profit from infringing?
These elements and many others will help determine the validity of your trademark infringement claim. Even high dollar lawsuits filed against celebrities follow a similar format, like a recent case that was brought against Taylor Swift.
The artist behind popular songs like “Love Story” and “I Knew You Were Trouble” is being sued over items from her clothing line that bear the phrase “Lucky 13”.
A company called Blue Sphere Inc., which also does business under the name Lucky 13, has been selling clothing and other products since 1991. The company is alleging that the young artist’s use of the phrase has been hurting their product sales since March 2012.
The suit uses Swift’s career to argue that she should have known about Lucky 13’s trademark on the phrase, citing her carefully cultivated public image and her numerous business and licensing partners.
“Swift’s conduct has been and will continue to be malicious, fraudulent, deliberate, willful, intentional, and in disregard of Plaintiffs’ intellectual property rights,” the suit reads.
The company also believes that Swift’s audience “undeniably and squarely fits within the exact same consumer demographic” as Lucky 13 merchandise.
Blue Sphere Inc. is seeking an injunction against Swift’s sale of Lucky 13 merchandise, in addition to Swift’s profits, Lucky 13’s lost profits and damages.
Trademark infringement can cost your business, and confuse your customer base. To protect your brand, consult an experienced trademark lawyer with years of experience litigating copyright infringement lawsuits. Call Klein Litigation to discuss your case with our legal team.
Did You Know: The owner of a trademark does not have to prove financial losses, they can build the case solely on damage to their brand.
Klein Trial Lawyers—Los Angeles business litigation lawyers