The Requirement Of Use As A Mark For Trademark Infringement Claims
The 6th Circuit has required that a defendant make use of a trademark in a trademark sense in order to be subject to liability for trademark infringement. However, the 2nd Circuit recently held that a plaintiff does not have to allege that the defendant used the plaintiff's mark in a trademark sense in order to state a claim for trademark infringement. Given the diverging views of these two circuits, and until a Supreme Court decision resolves such issues, trademark owners would be well served consulting with trademark attorneys prior to proceeding with an action for trademark infringement where the trademark use is unclear.
Trademark owners should be cognizant of any and all other uses of their mark, be it by competitors, in social media by consumers, or otherwise. Understanding what may constitute infringement is critically important, and a trademark attorney can help advise a trademark owner of the same in light of this decision.