How does trademark infringement occur, and what are the defenses that can be raised by the accused infringer?

Trademark infringement occurs when someone uses a trademark that is confusingly similar to another party's registered trademark. This can occur through the use of a similar name, logo, or other identifying mark. In order for a trademark owner to prove infringement, they must show that the accused infringer's use of the mark is likely to cause confusion among consumers about the source of the goods or services.

There are several defenses that can be raised by an accused infringer in a trademark infringement case. The first is fair use, which allows the use of a trademark in a descriptive or comparative manner. This might include using a competitor's trademark in an advertisement that compares the qualities of two products.

Another defense is the doctrine of nominative fair use, which allows the use of a trademark to identify the trademark owner's goods or services. This might include using a trademarked brand name when discussing the product or service, such as in a review or news article.

A third defense is the argument that the trademark is generic or descriptive and therefore not entitled to protection. For example, the term "apple" is too generic to be protected as a trademark for computers or mobile devices, as it is commonly used to refer to the fruit.

Finally, an accused infringer may argue that the trademark owner has abandoned the mark, meaning that they have stopped using it and have not enforced their rights for an extended period of time. This defense is difficult to prove and often requires a showing that the trademark owner has not used the mark for several years.

Overall, trademark infringement cases can be complex and require careful analysis of the facts and evidence. It is important for businesses to consult with an experienced intellectual property attorney to determine the best course of action if they believe their trademark rights have been infringed or if they have been accused of infringing on someone else's trademark.