How are trademark infringement damages calculated?

If you find that a competitor is using your trademark or a symbol, design or logo similar to yours, you can sue for trademark infringement. For a court to allow a trademark infringement lawsuit, the standard is’likelihood of confusion.’ This happens when another party uses a trademark in connection with the sale of a good in a way that will confuse the public about the producer or source of a good.

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If I can’t copy the name, might I imitate the ‘look and feel’?

The trademark laws may protect distinctive elements of design, decorative or non-functional aspects of a business under the concept of ‘trade dress’. The United States Supreme Court has dealt with this issue on several occasions. Protection is indeed available, but the protectable trade dress must be ‘nonfunctional’ and must have achieved “secondary meaning.” These concepts are often difficult to apply, which is why advice from a trademark lawyer on the particular facts you have in mind is so important.

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