Exam 18: Development and Protection of Intellectual Property

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Three common defenses to a trademark infringement claim are:

1. Non-Infringement: The defendant may argue that there is no infringement because the mark they are using is not identical or confusingly similar to the plaintiff's trademark. This defense hinges on the likelihood of confusion standard, which assesses whether the defendant's use of the mark is likely to cause confusion among consumers as to the source of the goods or services.

2. Fair Use: The fair use defense allows a defendant to use a trademarked term to describe their own products, or to use the mark for comparative advertising, parody, or commentary, provided that the use is not a commercial trademark use and does not confuse consumers. There are two types of fair use defenses: descriptive fair use, where the term is used in a descriptive sense rather than a trademark sense, and nominative fair use, where the term is used to refer to the trademarked product itself for purposes of comparison or commentary.

3. Invalidity of the Plaintiff's Trademark: The defendant may claim that the plaintiff's trademark should not have been granted in the first place or is no longer valid. Grounds for this defense include arguments that the trademark is generic, has become generic over time (genericide), is merely descriptive without having acquired secondary meaning, was obtained fraudulently, or has been abandoned by the trademark owner.

These defenses are not exhaustive, and the applicability and success of each defense will depend on the specific facts and circumstances of the case.