Trademark infringement can feel personal, because it hits the thing customers recognize and trust. The good news: most disputes follow a predictable framework. Once you understand what constitutes trademark infringement, the test for trademark infringement, and the practical steps for trademark enforcement, you can protect your brand without overreacting (or underreacting).
Disclaimer: This article is for general information only, not legal advice. Trademark rules vary by country and by facts.
1. What Is Trademark Infringement? A Short Definition
Trademark infringement is the unauthorized use of a trademark or service mark in connection with goods or services in a way that is likely to cause confusion about source, sponsorship, affiliation, or approval.
In practice, infringement isn’t limited to exact copies. It can involve a confusingly similar brand name, logo, or even a business name being used in a way that makes customers think there’s a connection, especially when the goods or services overlap.
- Brand name infringement: a look-alike name that creates confusion
- Trademark logo infringement: a similar design that signals the “wrong” source
- Service mark infringement: same concept, but for services rather than goods
- Trade name infringement or company name trademark infringement: when a business name is used as a consumer-facing brand identifier
So when people ask “what constitutes a trademark infringement?” the short answer is: confusing use in the marketplace.
2. What Is the Test for Trademark Infringement? “Likelihood of Confusion”
In most infringement analysis, the core question is:
Is consumer confusion likely?
Courts don’t usually rely on one single factor. They weigh multiple factors (the exact list varies), but they generally look at:
- Similarity of the marks (look/sound/meaning)
- Relatedness of the goods/services
- Where and how they’re sold/marketed (channels)
- Strength of the senior mark (distinctiveness + recognition)
- Evidence of actual confusion
- The alleged infringer’s intent
Types of confusion
Confusion can happen at different moments:
- Point-of-sale confusion: customer buys from the wrong source.
- Initial interest confusion: a consumer’s attention is captured by a confusing use (common in search ads, domains, marketplace listings).
- Post-sale confusion: someone sees the product later and assumes it came from you.
- Reverse confusion: a bigger newcomer overwhelms the market so people think you are copying them (reverse confusion trademark infringement).
This is why infringement in trademark law isn’t only about “identical copies.” Many disputes are about a mix of similarity + context.
3. Trademark Infringement Elements: US Framework + Global Equivalent
If you’re trying to understand trademark infringement elements, the cleanest framework comes from US law. Many countries use a very similar logic (valid rights, priority, use by another party, and a risk of confusion) even if the legal wording and tests differ.
The Core Elements
You typically need to show:
- A valid, protectable mark
- That you own it (or have priority rights)
- The other party is using a similar mark in commerce
- The use is likely to confuse consumers
In the US, trademark law distinguishes claims for infringement of a registered trademark (often associated with Lanham Act §32 / 15 U.S.C. §1114) and claims involving unregistered marks / unfair competition (often associated with §43(a) / 15 U.S.C. §1125(a)).
Registered vs Unregistered Trademarks: Why It Matters
- Infringement of a registered trademark often provides procedural and evidentiary advantages.
- Unregistered marks can still have enforceable rights in many places, but you may need stronger proof of reputation/goodwill and marketplace recognition.
If you’re not sure where you stand, it helps to separate “do I have rights?” from “how easy is it to enforce them?” Unregistered rights can be real, but they’re often harder to prove and more limited in scope.
» If you want a deeper explanation of what unregistered protection can look like, read our guide on free trademark registration and unregistered trademark rights.
» And if you want the clearest overview of the practical benefits of filing, see what trademark registration actually gives you.
4. “Someone Is Using My Trademark”: What to Do Step-by-step
Finding a copycat can be stressful. If someone is using your trademark and you’re wondering what to do, start here. These steps will help you assess the risk and act strategically.
Step 1: Confirm it’s actually infringement
Ask yourself:
- Are the goods/services the same or closely related?
- Are customers similar? Same channels (online ads, Amazon, retail, social)?
- Is the other use “brand-like” (on packaging, listings, signage) or merely descriptive?
- Do you have priority where it’s happening (territory matters)?
This matters because a lot of alleged trademark infringement is really:
- unrelated industries,
- different geographies,
- or weak/confusing evidence.
Step 2: Document everything
Start by gathering the evidence you’ll need later:
- Screenshots + URLs + dates (Wayback/archive if possible)
- Product listings, ads, metadata, social profiles
- Customer confusion evidence (messages, reviews, emails)
- Sales channels and jurisdictions involved
This documentation becomes critical when it comes to proving trademark infringement, and it speeds up enforcement across the board.
Step 3: Choose the least costly “first move”
The right first move depends on what you’re dealing with. In many cases, you can start with the least disruptive option and escalate only if needed:
- File a platform report (marketplaces and social networks often let you report trademark infringement)
- Contact the seller, vendor, or host directly, sometimes that resolves it fastest
- Send a formal notice (more on this below)
- Escalate legally if the harm is serious or the behavior continues
Good trademark enforcement is structured and efficient, not emotional.
5. Business Name, Company Name or Trade Name Infringement
Disputes about business names are often described as trade name infringement or company name infringement, and they raise questions about name infringement laws. But trademark rules don’t automatically follow company registries:
A company name is not automatically a trademark.
Business name vs trademark vs trade name
- A company name can be just an administrative label (registered with a company registry).
- A trademark identifies the commercial source of goods/services in the marketplace.
- A trade name (terminology varies) often refers to the business name used in commerce.
So if you’re dealing with company name trademark infringement, the strongest cases are when:
- the name is used on products/services as a brand,
- in the same market, to the same customers,
- and confusion is likely.
6. Passing Off vs Trademark Infringement (UK & similar systems)
If your brand operates in the UK (or another common-law system), you’ll often see passing off discussed alongside trademark infringement. People search for terms like passing off trademark or passing off trademark law because the two can look similar in practice, but they’re not the same tool.
What is “passing off” exactly?
At a high level, passing off protects the goodwill you’ve built in a brand when someone else’s branding or presentation misleads customers into believing there’s a connection, such as the same business, an official partner, or a related company, and that confusion causes damage.
Passing off is especially relevant when:
- you haven’t registered the mark (yet),
- but you can show genuine goodwill and recognition in the market (sales, marketing presence, customer association).
In practice, passing off and trademark infringement can sometimes point to the same real-world problem (customer confusion), but they rely on different legal foundations. So they may be used as alternatives, or pursued in parallel, depending on the jurisdiction and the evidence.
7. Logo Infringement: The “Stolen Logo” Confusion
Logo disputes are one of the most misunderstood areas of trademark law. People often describe the problem as logo infringement, look for logo infringement rules, or ask whether a similar logo counts as trademark logo infringement. Others call it a stolen logo or stolen logo design... and that wording matters, because it can point to a different type of legal claim.
Trademark perspective: confusion first
From a trademark standpoint, the question isn’t “did they copy my design?”, it’s: does the logo create a likelihood of confusion about who the product or service comes from?
That’s why similar logo trademark infringement is usually assessed in context: the overall look, the industry, the sales channels, and what an average customer would assume.
“Stolen logo” may be copyright (or design) too
If someone literally copied your artwork, that can also raise copyright issues. But copyright and trademarks are different:
- Trademark: consumer confusion and source identification
- Copyright: copying of original creative expression
If you want a clear breakdown (with examples) of how these two protections differ, and when each one applies, see our guide on the difference between trademark and copyright
8. Online / Internet Trademark Infringement (Ads, Marketplaces, and Domains)
Most infringement today doesn’t start with a storefront, it starts online.
Whether you’re dealing with online trademark infringement on marketplaces, internet trademark infringement in search ads, or you simply need to report a trademark infringement to a platform, the same principle applies: context matters.
Where the use appears and how customers encounter it can make the difference between “annoying” and legally actionable.
Marketplaces & e-commerce
On marketplaces and e-commerce platforms, infringement often shows up in ways that feel messy and indirect, such as:
- listings designed to look like yours,
- seller impersonation (store names, brand fields, profile copy),
- lookalike packaging or imagery that creates quick confusion,
- broader “brand abuse” tactics that blur who the real brand owner is.
If customers can reasonably think the listing is connected to you, that’s when it becomes more than a nuisance.
Comparative advertising and keyword ads
Comparative advertising isn’t automatically illegal, many businesses can lawfully reference competitors. The problem starts when a campaign crosses into comparative advertising trademark infringement, for example when it:
- misleads consumers about who’s behind the product,
- implies sponsorship or an official relationship, or
- uses your mark in a way that steers customers through confusion (a common issue in keyword-driven ads).
Domains & cybersquatting, a common online trigger
Domains are another frequent source of online disputes, especially when someone registers a lookalike domain to divert traffic or impersonate a brand.
If you want a deeper explanation of domain-related infringement and how it intersects with trademark rights, see our guide on Domain Name and Trademark Infringement Explained
DMCA vs trademark complaints
One last practical point: people often search for “DMCA trademark infringement,” but the DMCA is primarily a copyright process.
Most major platforms have separate trademark reporting routes, and using the wrong one can slow everything down or trigger unnecessary back-and-forth. When in doubt, remember to match your complaint to the right right:
- copyright for copied creative work
- trademark for consumer confusion and brand misuse.
9. Direct vs Indirect Trademark Infringement or Secondary Liability
Not every case is as simple as “one company copied another.” In many disputes, the real question is whether you’re dealing with direct trademark infringement or a situation where a third party helped enable it.
That’s where concepts like indirect trademark infringement and secondary liability trademark infringement (sometimes called secondary trademark infringement) become relevant.
Direct trademark infringement
This is the straightforward scenario: a party uses a confusingly similar mark in commerce in a way that’s likely to mislead customers about the source, affiliation, or sponsorship.
Indirect infringement or secondary liability
Indirect liability can come into play when a party contributes to, facilitates, or profits from another party’s infringement. Think of certain roles in the supply chain or online ecosystem. If you’re dealing with platforms, distributors, fulfillment partners, resellers, or intermediaries, this framework may matter because the “infringer” isn’t always the only party involved.
10. Defending Trademark Infringement Claims: Common Defenses
If you’ve received a notice of trademark infringement or you’re dealing with an alleged trademark infringement claim, the next step isn’t to panic: it’s to figure out what the other side actually needs to prove, and where your strongest response is.
Depending on the facts and the jurisdiction, a defense against trademark infringement often comes down to one or more of the following:
- No likelihood of confusion (for example, you are in different markets, customers, or overall context)
- Fair use (descriptive or nominative—again, jurisdiction-specific)
- Prior use / priority (you were there first in the relevant territory)
- First sale / resale principles (where applicable)
- Delay-based defenses (laches/acquiescence—fact-dependent)
In practice, defending trademark infringement is less about one “perfect argument” and more about choosing the strongest defense based on the facts: how the mark is used, who the audience is, and what consumers are likely to believe..
11. Willful Trademark Infringement
This is where intent can start to matter.
Willful trademark infringement generally refers to situations where a party knowingly (or recklessly) keeps using a mark despite the risk of confusion.
The exact legal consequences depend on the jurisdiction, but in US trademark cases, for example, willfulness is often treated as an important factor for certain remedies, even if it isn’t always a strict requirement for every type of monetary award.
From a practical standpoint, evidence of willful infringement trademark can change the dynamic: it may strengthen your negotiating position, increase settlement leverage, and affect what remedies are realistically on the table.
12. Remedies: Enforcing Trademark Rights
If you can show infringement, the goal is usually simple: stop the confusion and limit the damage.
Depending on the facts and the jurisdiction, remedies can include:
- Injunctions to stop the use
- Platform removals or takedowns (for listings, ads, profiles, or content)
- Monetary relief (damages, profits, or other measures, depending on the case)
- Corrective steps, such as changes to branding, packaging, or listings
13. International Trademark Infringement: Cross-Border Strategy
International cases are where trademark disputes get complicated fast, because the rules are tied to territory. With international trademark infringement, the first question is always: where do you actually have enforceable rights, and where is the confusion happening?
Trademark rights are territorial. That means your US rights won’t automatically fix a problem in the EU (and EU trademark infringement has its own procedures and enforcement paths), and EU rights won’t automatically solve an issue in the UK.
Even when the infringement is “online,” you may still need a country-by-country approach depending on where the brand is targeted, where customers are located, and where sales occur.
For effective brand protection enforcement across borders, a practical strategy often includes:
- Filing or expanding protection in the markets that matter most
- Setting up monitoring or watch services to catch copycats early
- Coordinating enforcement steps so actions are tailored to each marketplace and jurisdiction
14. Quick FAQs for Specific Infringement Scenarios
In practice, trademark issues rarely look like clean textbook examples. The questions below are scenarios we run into frequently, especially with local businesses and online platforms.
A local restaurant is using my name, does that count as trademark infringement?
It can. Restaurant and hospitality brands often collide locally, and the key question is whether customers are likely to assume the businesses are connected.
If you operate in the same area, or target the same customers online, the risk of confusion goes up. Start by documenting where and how the name is used, and check where you have enforceable rights before escalating.
Do nonprofits get a pass if they use someone else’s trademark?
Not automatically. Even in a nonprofit context, the core issue is still consumer confusion: are people likely to believe the nonprofit is affiliated with, sponsored by, or connected to your brand?
The details matter: what name is used, what services are offered, and how the organization presents itself to the public.
What’s the difference between “product infringement” and trademark infringement?
People often say “product infringement” when they really mean “they copied my branding.”
Trademark infringement is about brand identifiers: names, logos, slogans, and other signals that can mislead customers about source. If the problem is the product’s design or technology, that may point to different rights (like designs or patents), not trademark.
What if someone files a false trademark infringement claim against me?
This happens more than you’d think. If you’re dealing with a false claim of trademark infringement, especially through platform takedowns, it may be a form of trademark abuse.
The best response is usually structured: preserve evidence, follow the platform’s dispute process, and escalate only when you understand what the other side is alleging and what your strongest counter-evidence is.
15. Toolkit: Reporting + Sample Cease & Desist Letter
When you’re ready to take action, speed and clarity matter. Below is a practical checklist you can use to report trademark infringement on a platform, followed by a sample cease and desist letter for trademark infringement you can adapt as a starting point.
How to report trademark infringement: Quick Checklist
Most platforms move faster when you make it easy for them to verify the issue. Before you submit a report, make sure you have:
- The exact URLs (listing/ad/profile) and screenshots with dates
- Proof of your rights (registration details, proof of use, or goodwill evidence)
- A short explanation of why confusion is likely (same market, similar customers, similar branding)
- A clear request (remove the listing, change the name, delist products, disable the page, etc.)
Sample Cease and Desist Letter for Trademark Infringement
Disclaimer: This is a general template for education. Consider local counsel for tailored advice.
Subject: Notice of Trademark Infringemen: Request to Cease Use of [MARK]
Hello [Name/Company],
We are writing regarding your use of the designation [MARK/NAME/LOGO] in connection with [goods/services] at [URLs/locations].
We own trademark rights in [MARK] for [goods/services], including [registration number/jurisdiction, if applicable] and/or established use in commerce. Your use is likely to cause consumer confusion as to source, sponsorship, affiliation, or approval.
We request that you:
- Cease all use of [MARK] (or confusingly similar variants) in connection with [goods/services];
- Remove or update the infringing materials at [URLs/locations]; and
- Confirm in writing by [date] that you will comply.
This letter is sent without prejudice to any rights or remedies available. We hope to resolve this matter promptly and amicably.
Sincerely,
[Name]
[Company]
[Contact information]
English
