What are the elements of a trademark infringement claim?
A trademark infringement claim is a legal action a trademark owner can take when their trademark has been violated. In North Carolina, the elements of a successful trademark infringement claim include: 1. Ownership of the trademark. The trademark owner must show they have the legal rights to the trademark. This can be done by showing a valid registration to the mark in the USPTO (United States Patent and Trademark Office). 2. Likelihood of confusion. The trademark owner must show that the other party’s use of the trademark is likely to cause confusion among consumers as to the source of the goods or services with which the mark is being used. 3. Actual or Potential Damages. The trademark owner must show actual or potential damages resulting from the infringing use of the mark. 4. Willful Infringement. The trademark owner must also show that the other party willfully infringed upon their trademark. This means that the other party acted with full knowledge of the trademark owner’s rights and acted with the intention to cause confusion among consumers. In addition to these elements, North Carolina follows the concept of “fair use” in trademark infringement cases. Fair use is a defense to trademark infringement and can be used if the other party can show their use of the mark does not create a likelihood of confusion among consumers and is not used in a manner that is likely to cause dilution of the trademark owner’s rights.
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