| It's helpful to analyze this the way a U.S. court likely would. Suppose hypothetically that the following are true: (A) that the mark PAPER is protectable for what 53 sells -- and I think that's highly likely; PAPER in this context strikes me as a "suggestive" and therefore protectable mark [1]; and (B) that 53 was the first user of the mark; and (C) that there's a "likelihood of confusion" about the origin, sponsorship, or endorsement of the companies' products or services -- this entails looking at seven or eight factual questions, namely the "strength" of the mark; the proximity of the goods; the similarity of the marks in appearance and/or sound; any evidence of actual confusion; similarity in marketing channels used; the type of goods and the degree of care likely to be exercised by the purchaser
the junior user's intent in selecting the mark; and the likelihood of expansion of the respective product lines [2]. In that situation, as the junior user, Facebook would (or should) be liable for infringement. Another point: 53 can be damaged by "reverse confusion," namely people thinking that 53 is the one that's ripping off Facebook [3]. [1] http://tmep.uspto.gov/RDMS/detail/manual/TMEP/Oct2012/TMEP-1... [2] http://en.wikipedia.org/wiki/Trademark_infringement [3] http://definitions.uslegal.com/r/reverse-confusion-trademark... |