Trademark infringement happens when someone uses a name, logo, or other mark on goods or services in a way that is likely to confuse buyers about who is behind them. A name that sounds like yours, looks like yours, or means the same thing can infringe when someone uses it on related goods or services. If a court finds infringement, it can order the other business to stop, hand over its profits, and pay your damages and legal costs.
What Counts as Trademark Infringement
Under the Lanham Act, the federal trademark law, infringement is the unauthorized use in commerce of a mark, or a copy or “colorable imitation” of it, in connection with selling or advertising goods or services, where that use “is likely to cause confusion, or to cause mistake, or to deceive.” A trademark violation claim has four elements:
- You own a valid trademark.
- You used it first, in the relevant market.
- The other party is using a similar mark in commerce, without your permission.
- That use is likely to confuse buyers about the source of the goods or services, or about a connection between the two businesses.
Owners of federally registered marks sue under 15 U.S.C. § 1114. Owners of unregistered marks can sue under § 1125(a), which covers any word, name, symbol, or device that confuses buyers about affiliation or origin. A registration helps you in court because it is evidence that you own the mark and it gives you nationwide rights. The guide to registered vs. unregistered trademarks explains what common law rights cover without a registration.
Infringement cases are civil lawsuits, usually filed in federal court. The USPTO does not decide infringement; its Trademark Trial and Appeal Board decides only whether a mark can be registered or stay registered.
The Likelihood of Confusion Test
Courts ask whether ordinary buyers are likely to be confused, so evidence of real mix-ups helps your case but you can win without it. Each federal circuit uses its own list of factors, and the lists overlap heavily.
In the Second Circuit (New York, Connecticut, and Vermont), courts use the eight Polaroid factors from Polaroid Corp. v. Polarad Electronics Corp. (2d Cir. 1961). The USPTO uses the 13 du Pont factors from In re E. I. du Pont de Nemours & Co. (C.C.P.A. 1973) when it decides whether to refuse an application, and the Trademark Manual of Examining Procedure treats two of them as key in every case: how similar the marks are and how related the goods or services are.
| Question the court asks | Polaroid factor (2d Cir.) | Closest du Pont factor (USPTO) |
|---|---|---|
| How strong and well known is the senior mark? | Strength of the mark | Fame of the prior mark |
| Do the marks look, sound, or mean the same? | Similarity of the marks | Similarity of the marks in appearance, sound, meaning, and commercial impression |
| Are the products or services related? | Proximity of the products | Relatedness of the goods or services |
| Is the senior owner likely to expand into the other’s market? | Bridging the gap | Not a separate factor |
| Has anyone been confused? | Actual confusion | Nature and extent of actual confusion |
| Did the other party copy on purpose? | Defendant’s good faith | Not a separate factor |
| Could the other product hurt the senior owner’s reputation? | Quality of the defendant’s product | Not a separate factor |
| How carefully do buyers shop? | Buyer sophistication | Conditions of sale (impulse vs. careful purchase) |
| Are the products sold the same way? | Covered under proximity | Similarity of trade channels |
| Do many businesses already use similar marks? | Covered under strength | Number and nature of similar marks in use |
No single factor decides a case. Two nearly identical names can coexist when one sells industrial pumps to engineers and the other sells candles online. Two different-looking names can conflict when they mean the same thing and sell the same product to the same buyers.
Examples of Infringement
These fact patterns often lead to infringement claims:
- A new coffee shop opens under a name one letter off from an established coffee roaster in the same region.
- A clothing brand prints a logo with the same shape and colors as a competitor’s logo on similar shirts.
- A seller lists goods on a marketplace with a famous brand’s name on the label, when the brand did not make them. That is counterfeiting, the most serious form of infringement.
- A company buys a competitor’s brand name as a search ad keyword and writes ad copy that suggests an affiliation.
- A former licensee keeps using a franchise name after the license ends.
Logo trademark infringement follows the same test as word marks. Courts compare the overall commercial impression, including shapes, colors, and any words in the design. Copying a logo can also be copyright infringement, because the artwork itself can be protected by copyright. The two claims are separate: trademark law asks about buyer confusion, and copyright law asks whether the creative work was copied.
Trademark Infringement Cases Worth Knowing
Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961). The court found Polaroid’s mark strong and the names very similar, but Polaroid still lost. It had known about Polarad since 1945 and waited years to act, and the court held that the delay barred relief while Polarad stayed out of Polaroid’s core business.
Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023). VIP sold a dog toy shaped like a Jack Daniel’s bottle and labeled “Bad Spaniels.” The Supreme Court held that when a parody is used as the seller’s own brand, it gets no special First Amendment screening and the ordinary likelihood of confusion test applies. The parody can still count in that test.
Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010). Tiffany claimed eBay was liable for counterfeit Tiffany jewelry that sellers listed on the site. The court held that eBay’s general knowledge that some listings were counterfeit was not enough, and that contributory liability required knowledge of specific infringing listings.
Contributory Trademark Infringement
Contributory trademark infringement makes a business liable for someone else’s infringement. The Supreme Court set the standard in Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982): a manufacturer or distributor is liable if it intentionally induces another party to infringe, or keeps supplying a product to someone it knows or has reason to know is infringing. Courts apply the same standard to online marketplaces and other service providers, as the Tiffany v. eBay court did.
What Is Not Infringement
Several uses of another company’s mark are lawful:
- Using a descriptive word in its ordinary meaning, in good faith, to describe your own product. A juice company can say its drink is “sweet” even if someone else owns SWEET as a mark. The Lanham Act makes this a defense when the term is “used fairly and in good faith only to describe” your goods.
- Using your own personal name in your business, if you do not use it as a brand in a way that confuses buyers.
- Naming another company’s product to refer to it, such as “we repair Honda engines” or a side-by-side price comparison.
- News reporting, commentary, and criticism that do not use the mark as your own brand.
- Using a similar name for unrelated goods or services where buyers would not connect the two businesses.
Registering an LLC or a domain name gives you no trademark rights, so it is no defense to an infringement claim and no way to stop a business that used the name before you.
What to Do If Someone Uses Your Business Name
Move quickly, because delay can weaken your case, as Polaroid learned.
- Save evidence. Take dated screenshots of the other business’s website, social accounts, listings, and packaging. Keep every message from a customer who mixed you up.
- Check your own rights. Find the date you first used your mark, where you used it, and whether you have a federal or state registration. Look up the other business’s first-use date if you can.
- Check the USPTO record. If the other business has filed an application to register the mark, you may be able to file a trademark opposition after the USPTO publishes the application.
- Talk to a trademark attorney before you contact the other business. An attorney can tell you whether your claim is strong, whether you used the name first, and what a lawsuit would cost.
- Decide on a response. Options include a phone call, a cease and desist letter, a takedown request to a marketplace or platform, or a lawsuit.
Cease and Desist Letters
Many disputes start with a cease and desist letter, which is a written demand that the other business stop using the mark. Often the dispute ends there, with a rebrand, a transition period, or a coexistence agreement. A letter that overstates your rights can backfire, so have a trademark attorney review or send it. If you are on the receiving end, the guide to responding to a trademark cease and desist letter walks through the options.
What to Do If You Are Accused of Infringement
Do not ignore the accusation, and do not reply right away with an admission or a threat. Read the claim closely: which mark, which of your uses, and what the other side wants. Then check the facts that decide the case: who used the mark first and where, whether the goods are related, and whether the other side has a registration and for which goods.
Many accusations are weaker than they look, because the other business may have used its mark only in one area or for different goods. A trademark attorney can size up your risk and negotiate for you, and you can find a trademark attorney in the directory who handles disputes. Litigation is usually billed by the hour, and the guide to trademark attorney cost explains how dispute work is priced.
Remedies Courts Can Order
Trademark infringement remedies come from the Lanham Act:
| Remedy | What it means | Statute |
|---|---|---|
| Injunction | A court order to stop using the mark. The owner gets a rebuttable presumption of irreparable harm once it wins or shows it is likely to win. | 15 U.S.C. § 1116(a) |
| Defendant’s profits | The infringer hands over profits earned from the infringing use. | 15 U.S.C. § 1117(a) |
| Damages | Money for the owner’s own losses. The court can raise the award up to three times actual damages. | 15 U.S.C. § 1117(a) |
| Costs | Court costs of the lawsuit. | 15 U.S.C. § 1117(a) |
| Attorney fees | Reasonable attorney fees to the winning side, only in exceptional cases. | 15 U.S.C. § 1117(a) |
| Destruction of goods | Labels, signs, packaging, ads, and the means of making them are delivered up and destroyed. | 15 U.S.C. § 1118 |
| Counterfeiting awards | Triple profits or damages plus attorney fees for knowing use of a counterfeit mark, or statutory damages of $1,000 to $200,000 per counterfeit mark per type of goods, up to $2,000,000 if willful. | 15 U.S.C. § 1117(b) and (c) |
In Romag Fasteners, Inc. v. Fossil, Inc. (2020), the Supreme Court held that a trademark owner can recover the infringer’s profits without proving willful infringement, though the infringer’s intent is an important factor in the award.
How to Avoid Infringing Someone Else’s Mark
Before you commit to a name or logo:
- Run a trademark clearance search before you print anything, register a domain, or file. Search the USPTO database, state registrations, and unregistered use online.
- Look for marks that sound alike, look alike, or mean the same, as well as exact matches.
- Focus on marks used for related goods or services and sold through the same channels.
- Avoid names and logos that call to mind a famous brand, even for unrelated products.
- Get a trademark attorney’s opinion if the search turns up a close mark in your field.
If a close mark turns up after you have launched, deal with it early. Renaming a business with a few months of history costs far less than renaming one under a court order.