Are there any defenses to trademark infringement?

Yes, there are defenses to trademark infringement in Indiana. Generally, a defendant in a trademark infringement suit may assert that the use of the mark does not create a likelihood of confusion among consumers, or that the defendant has a prior right to use the mark. The likelihood of confusion test looks at various factors such as similarities between the marks, the relatedness of the goods or services, the strength of the plaintiff’s mark, evidence of actual confusion, the marketing channels used, the type of goods or services and the degree of care likely used by the purchaser. If the defendant can show that there is no likelihood of confusion, they can successfully assert the defense. A defendant may also argue that they have a prior right to use the mark. This defense may be used if the defendant has used the mark commercially prior to the plaintiff in the same geographic area. If the defendant can show that it is the senior user in the geographic area, then it should be able to successfully assert the defense. Finally, a defendant may assert the doctrine of fair use, which permits limited use of another’s mark without infringing the trademark rights. This is sometimes referred to as “nominative fair use,” which allows the defendant to use the plaintiff’s mark if they are using it to refer to the plaintiff’s goods or services. If the defendant can successfully assert the defense of fair use, then they should be able to avoid liability for trademark infringement.

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