Andrew Ewalt's Law Blog

Trademark Infringement: Part 2

To often when protecting a trademark companies only focus on the bad acts of a direct infringer. However, what if it is discovered that other parties are continuing to infringe upon the trademark or other intellectual property.  Thus, it is very important to look beyond the direct infringement because courts have found secondary liability for trademark infringement. 

There are two factors to consider when attempting to prove secondary trademark infringement.

1.  Supply of a product or service.

2.  Knowledge of direct infringement. 

Example:  A mall owner could be found liable for infringement conducted by a vendor, even though the mall owner never bought or sold any of the products or services.

Trademark Infringement: Part 1

In order to prove trademark infringement it must be demonstrated that the trademark owner really owns the trademark and that the potential infringer's use of the mark (used to identify goods or services) causes a likelihood of confusion (confusion that their product is really the trademark owners product).  In other words will the consumer be confused as to the source of the goods or services.