Are there any defenses to trademark infringement?
Yes, there are several defenses to trademark infringement in Massachusetts. One defense is that the use of the trademark is “fair use.” “Fair use” is when a person uses a trademark in a descriptive manner, such as in a comparative advertisement. An example of fair use is a company comparing their product to a competitor’s product directly using the competitor’s trademark. Another defense is that the defendant had no knowledge of the trademark. This means that the defendant was unaware of the trademark and had not intended to infringe upon it. For example, if a company created a product using a trademark similar to another without knowing it existed, they could potentially use this defense. A third defense is that the trademark is generic. This means that the trademark has become so popularly used to describe a certain product or service that it is no longer a trademark. An example of this is “aspirin” which was originally a trademark of German pharmaceutical company Bayer AG. Finally, a defendant can also use the defense of “exhaustion of rights”. This means that the owner of the trademark has authorized or consented to the use of the trademark by selling the product or service with the trademark in the marketplace. For example, if a company sells a product with the trademark on it, the company may not be liable for trademark infringement if someone else uses the same trademark.
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