Answer
What counts as trademark infringement?
Lawyers call this: infringement · 15 U.S.C. §§ 1114, 1125(a)
Short answer
Infringement is using a name, logo or other mark in business in a way that is likely to make buyers think your goods come from, or are connected with, someone else who has earlier rights. The owner has to prove two things: valid rights in the mark, and a likelihood of confusion. Actual confusion helps but is not required.
Infringement is decided by a court. The Trademark Trial and Appeal Board decides only whether a mark can be registered or stay registered. It cannot order anyone to stop using a name or pay money.
What changes the answer
- Whether the owner's rights are valid and earlier
- A registration is strong evidence of rights. Unregistered rights also count, but the owner must prove use, distinctiveness and the date it began.
- How close the marks are
- Courts compare sound, look, meaning and overall impression, not spelling letter by letter.
- How related the products are, and where they are sold
- The same name on unrelated goods sold to different buyers may not infringe. The same name on the same goods in the same stores usually raises the question squarely.
- What the other business intended, and what buyers actually did
- Copying on purpose weighs toward confusion. Misdirected calls, emails and reviews are evidence of actual confusion.
- Whether the use is a brand use at all
- Using another company’s name to describe your own product honestly, such as saying a part fits a named brand, can be permitted. That turns on the facts.
The rule
Two federal statutes do most of the work. Section 32 of the Lanham Act, 15 U.S.C. § 1114(1), covers registered marks: using a copy or colorable imitation of a registered mark in commerce in a way likely to cause confusion, mistake or deception. Section 43(a), 15 U.S.C. § 1125(a)(1)(A), covers marks whether registered or not: a false designation of origin likely to cause confusion as to affiliation, connection or association.
Each federal circuit uses its own list of factors to decide likelihood of confusion. In Texas, the Fifth Circuit uses eight “digits of confusion”: the type of mark, similarity of the marks, similarity of the products, identity of retail outlets and purchasers, identity of advertising media, the defendant’s intent, actual confusion, and the care buyers use. Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 227 (5th Cir. 2009). No single digit decides the case. Jim S. Adler, P.C. v. McNeil Consultants, L.L.C., 10 F.4th 422 (5th Cir. 2021).
A court that finds infringement may order the defendant to stop. 15 U.S.C. § 1116(a). Since 2020 the owner gets a rebuttable presumption of irreparable harm once it proves a violation, or a likelihood of success for a preliminary injunction. Id. Subject to the principles of equity, the owner may also recover the defendant’s profits, its own damages and the costs of the case. 15 U.S.C. § 1117(a). The court may raise damages up to three times the actual amount, and may award attorney fees to the winning side in exceptional cases. Id.
Go deeper
The guide explains the Board’s version of the confusion test, the du Pont factors, and how often each one mattered in this library. Courts use a similar list for infringement.
What to do next
If you think someone is infringing your mark, document it before you do anything else. Save dated screenshots, product photos, receipts and every instance of a customer who got the two businesses mixed up. Write down when you first used your mark and where.
Most disputes start with a letter, not a lawsuit, and many end there. A lawsuit is filed in federal or state court under the rules of that court, and it can take a year or more to reach trial. Sending a demand without checking your own priority first can backfire, because the other side may have used the name longer.
Collecting evidence is work you can do yourself. Deciding whether the facts support a claim, and what to demand, is legal work.
If you are weighing a letter or a lawsuit, Valet Law, PLLC can review the evidence and tell you what a court is likely to focus on.
Attorney review is provided by Valet Law, PLLC, a law firm separate from Trademark Valet, LLC. Keep confidential facts out of public tools. Your first message to Valet Law should identify the parties and the general issue only. Wait until Valet Law confirms it can discuss the matter before sending confidential details.
Who checked this
Reviewed and approved by Brandon Leavitt on 2026-10-02.
General information about how trademark law works. It is not legal advice about your situation, and reading it does not make anyone your lawyer.