How to Tell if a Trademark is Considered Infringing

If you have a registered trademark and you suspect that someone may be using a mark that’s similar or nearly identical to yours, what should you do? Trademark law is designed to protect against business practices that mislead or confuse consumers — so to show that another party is infringing on your trademark, you’ll need to prove that consumers are likely to confuse the marks (known as “likelihood of confusion”). Here’s a brief overview of how Minnesota trademark owners can show a likelihood of confusion and take legal action against the infringing party.

Understanding the SquirtCo Factors

Federal courts around the country have developed different — though generally similar — guidelines for assessing the likelihood of confusion. Minnesota is in the Eighth Circuit, and courts here are guided by the SquirtCo factors (named for the Eighth Circuit Court of Appeals’ 1980 ruling in SquirtCo v Seven-Up Co.). Under SquirtCo, courts faced with determining whether a defendant has infringed a trademark consider:

  1. the strength of the plaintiff’s mark;
  2. the similarity between the plaintiff’s and defendant’s marks;
  3. the degree to which the allegedly infringing product competes with the plaintiff’s goods;
  4. the alleged infringer’s intent to confuse the public;
  5. the degree of care reasonably expected of potential customers, and
  6. evidence of actual confusion.

These elements serve as a guide, and not all factors may apply to a given case.

Demonstrating the Strength of Your Mark

One of the critical factors in arguing that another party is infringing on your trademark is demonstrating the strength of your existing mark. For the most part, the stronger your mark is—meaning that the mark is more than just descriptive—the more compelling your case may be. According to the United States Patent and Trademark Office (USPTO), weak trademarks include descriptive trademarks that “merely describe some aspect of your goods or services without identifying or distinguishing the source of the goods or services.” A strong trademark carries a secondary meaning or is fanciful or arbitrary, such as “Rolex” for watches or “Apple” for computer products.

Taking Action Against Trademark Infringement in Minneapolis

If you suspect that another party is infringing on your trademark, reach out to a knowledgeable IP attorney to discuss the situation. Together, you can evaluate the strength of your case and determine how substantially their infringing actions will impact your business. From there, your attorney may advise sending a letter to the infringing party alerting them to your trademark rights and asking them to stop all infringing activities. Should they ignore this letter, you can discuss further legal action, such as filing a lawsuit against them. Whatever the specifics of your situation may be, it’s a good idea to enlist the guidance and support of an experienced IP lawyer.


If you have questions about a potential trademark infringement issue in Minneapolis or St. Paul, call Rubric Legal LLC today at (612) 465-0074 to speak with a trusted IP attorney.

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