Section 1114 - Remedies; infringement; innocent infringement by printers and publishers

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Trademark Act §1114 Infringement and Limitations on Remedies

Polaroid Test - The Polaroid Test is a balancing test which was created by the Second Circuit for infringement assessments where use in relation to non-competing goods and services is involved, but it is applied by this Circuit to competing uses, as well. If similar marks have been used in commerce, the following factors are considered in determining whether or not there is the likelihood of confusion required for a finding of infringement under §1114 :

  1. Strength of the marks in question
  2. Degree of similarity between the marks
  3. Proximity of the goods and/or services in the market place
  4. Quality of the defendant's goods and/or services
  5. Likelihood that the prior owner will "bridge the gap" in the marketplace
  6. Actual confusion between the marks
  7. Good faith of the defendant
  8. Sophistication of the buyers of the respective goods and/or services

Ninth and Sixth Circuits use the following factors in assessing likelihood of confusion for similar marks. The resemblance to the Polaroid factors is apparent:

Compare the "likelihood of confusion" factors created by the Federal Circuit for use in determining "confusing similarity" under §1052 in In re E.I. duPont de Nemours & Co., 476 F.2d 1357 (CCPA 1973)

Inwood Labs v. Ives Labs, 456 U.S. 844 (1982)

Limitations on Remedies for Infringement Generally:

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