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Trademark Infringement

The picture to the left is Monster Energy Drink, but made by two different companies. The image comes out of the infringement lawsuit filed in the Federal District court to determine who gets to use Monster Energy Drink and who has to change their name. The claim is “without permission or authority from Hansen, Defendants have infringed Hansen’s MONSTER Marks in interstate commerce in connection with Defendants’ making, using, promoting, advertising, selling, and/or offering to sell the MONSTER ENERGY SHOT drink.”

If someone uses someone else’s mark without permission this is called trademark infringement. Accusations of trademark infringement are increasingly common on the Internet. A mark is infringed under U.S. Trademark Law when another person uses someone else’s mark which could cause a likelihood of confusion as to the source or sponsorship of the goods or services involved. The likelihood of confusion may be created when consumers think that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by the plaintiff. The plaintiff claiming trademark infringement needs to also show they have the rights to a trademark. The plaintiff has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion, mistake and/or deception about the origin of the defendant's goods or services. Therefore, the person making the claim must first show they were the first to use the trademark in commerce and must be registered with either the state for a state action or with the United States Patent and Trademark Office for interstate infringement. One example is a private care repair shop advertising the BMV logo that brought customers in thinking BMW approves the repair shop for servicing BMW cars or they are competent enough to do service work on BMW cars. Something goes wrong with the repair and the car is taken to the BMW dealer who says the car’s repair was done wrong. Can they complain to BMW to have the problem fixed? Of course they cannot expect BMW to make good on the bad repair work done by a non BMW repair facility. The only answer is the Attorney General’s Consumer Complaint division and file a lawsuit in a court of law. Most likely BMW will write a cease and desist letter to the auto repair shop telling them to stop using the logo as there is infringement because the public is confused of their relationship with BMW. Simply put, there is no relationship. By the way, what the repair shop did is called “trademark tarnishment” because they have tarnished the good trademark of BMW.

If you have an questions about this article, please call Citadel Patent Law and ask to speak with trademark attorney George Leone.

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