An introduction to determining whether an alleged infringer is more than "alleged"?
1
Is your trademark currently in use?
To have ownership rights in a trademark, an entity does not necessarily have to be registered with the US Trademark Office or a State Trademark Agency. If the entity is consistently using a mark and the mark meets certain qualifications for trademarkability (ie. not generic), then you have rights.
2
Determine the scope of your rights.
If the mark is not registered at the USPTO, then your rights are limited geographically to where it is being used. If it is registered, then you may have nationwide rights.
3
What are the goods and services?
What are you using the mark to identify? What type of goods and/or services? This will limit the scope of your protection.
4
Is there a Likelihood of Confusion?
Comparing your mark to the alleged infringing mark, would a consumer likely be confused as to the origin of a product or service? There are several elements in this analysis, but none are exhaustive. It basically comes down to whether a consumer would be confused. If yes, then there is arguably an infringement.
5
TIP:
If you are planning to use a mark, file an Intent-to-Use application with the USPTO.
If you are already using the mark, file an application with the USPTO immediately.
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