What are the elements of a trademark infringement claim?

In Massachusetts, a trademark infringement claim requires two elements to be established: likelihood of confusion and use of a mark in commerce. Likelihood of confusion means that there is an existing risk that consumers will be confused between the infringing mark and the trademark that is being infringed upon. This typically requires evidence that the marks are identical or that the marks are similar enough that a reasonable consumer would mistake one for the other. The second element of a trademark infringement claim in Massachusetts is use of a mark in commerce. This means that the alleged infringer is using the trademark to sell goods or services in the marketplace. The use must be intentional and in such a way as to indicate that the goods or services are associated with the trademark in some way. For example, a company using a trademark that is identical or almost identical to another company’s trademark in their marketing materials or product packaging could be found to be using the mark in commerce. Overall, for a trademark infringement claim to be valid in Massachusetts, a likelihood of confusion between the infringing mark and the trademark it is infringing upon, as well as use of the mark in commerce, must be established.

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What are the elements of a trademark infringement claim?

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