Trademark Infringement
The Lanham Act provides a cause of action for trademark infringement. This cause of action exists for both registered marks (15 U.S.C. § 1114(1)) and unregistered marks (15 U.S.C. § 1125(a)). To establish trademark infringement, the plaintiff must show: (1) a valid trademark; (2) likelihood of confusion from the defendant's use; and (3) resulting damages.
Likelihood of confusion is the hallmark of trademark infringement. The Eighth Circuit uses a 6-factor test to determine likelihood of confusion: (1) the strength of the owner's mark; (2) the similarity of the owner's mark and the alleged infringer's mark; (3) the degree to which the products compete with each other; (4) the alleged infringer's intent to pass off its goods as those of the trademark owner; (5) incidents of actual confusion; and (6) the type of product, its costs and conditions of purchase. See Kemp v. Bumble Bee Seafoods, Inc., 398 F.3d 1049 (8th Cir. 2005).
- These factors guide the analysis, but courts are not bound to a rigid application of the factors. No one factor controls, and different factors may be entitled to more weight in different cases.
Arkansas Trademark Law: Trademark cases are usually filed in federal court, but Arkansas has a trademark statute comparable to the Lanham Act. See A.C.A. 4-71-201, et seq.
