Law Assignment Analysing Civil Legal Suit Regarding Trademark Infringement
Question
Task:
Law Assignment Background Information
Mr Jones is a local attorney representing Arnott’s Biscuits who produces TIM TAM and they have launched a civil lawsuit claiming trademark infringement against the Plainfield Bakery Company on the basis that their new product called 'TAMS TIMS' is unfairly profiting from the popularity of Arnott’s Biscuits product (TIM TAM) due to consumer confusion. The product is only available in the greater Melbourne area (CBD and surrounding suburbs). Plainfield Bakery Company is arguing that it is unlikely consumers would be confused because the package is different as well as the shape of the biscuits (they are shaped like little men—named Tim!).
Mr Jones has contacted you and asked you to prepare a proposal that will demonstrate:
that you understand the legal issue at hand
that you have an understanding of the relevant legal definitions and evidence related to the issue at hand
that there is a relevant psychological theory or model that relates and may provide adjudicative fact (evidence) to assist with the case
how you would provide evidence that would assist him with his case (based on previous appellate cases).
In order to assist Mr Jones, your proposal must include the following sections. Please use the same headings within the assignment
Introduction
This section should clearly demonstrate your understanding of the task that Mr Jones has set for you. It should identify the issue at hand and include a review of the relevant case facts (adjudicative facts) as well as identifying the overarching legal and psychological areas that are the basis for the paper.
Legal background
This section should clearly demonstrate that you understand the main legal issues related to the case, specifically through the following sub-sections:
the legal definition of trademark infringement
the legal definition of consumer confusion
how this case meets the legal aspects of the tort liability model
referencing of legal guidance (cases) as to how the issue of consumer confusion may be presented through psychological evidence (e.g. surveys, polls, expert evidence).
Psychological background
This section should clearly demonstrate an understanding of how cognitive psychology relates to the issue of trademark infringement, especially with regard to consumer confusion. You should provide a brief overview of how cognitive psychology is an inherent part of consumer confusion and identify a specific cognitive theory or model that is directly related to this case by demonstrating an understanding of the application to the facts of the case (do not simply cite psychological articles on consumer confusion).
Description of consumer confusion survey
This section should include the following:
Component 1 (Sampling and selection): a description of who the evidence will be gathered from (i.e. participants) and how this sample reflects the information presented in the required assignment readings as well as a description of the procedure you will use for gathering the data (i.e. methods) and how this procedure reflects information from the readings.
Component 2 (sample survey questions): this section will include five sample questions that would be included in the survey. There should be a brief description after each question indicating how the question relates to any legal aspect of the project.
Answer
Introduction
According to the research on law assignment, the evaluation into the trademark act of 1995 illustrates that a trademark is unique and distinctive intellectual property that consists of designs, signs, and symbols or a combination of the same that can provide an individual, distinct entity to the registered business organization. The business organization can effectively distinguish itself from other competitors and create its legal entity through effective utilization. As per the act's provisions, the Trademark owner can be an individual, a business organization, or any other type of legal entity. The Trademark registration under the provisions of the trademark act 1995 effectively ensures that the owner of the business organization has the exclusive legal right to words using a specific brand name or a symbol or a combination of the two.
The evaluation into the given case effectively provides that Mr. Jones, the legal attorney of Arnott’s biscuits, effectively launched a civil legal Suit against a competitive business organization Plainfield Bakery company regarding trademark infringement. The primary basis on which the organization is launching a civil lawsuit against the competitor company is that Plainfield Bakery company is selling a new product within the market by the name of Tam's Tim's, which is very similar to the existing development Arnott’s biscuits Tim tams. As a result of the new product launch, Arnott’s biscuits identify that there has been a significant reduction in the revenue-generating capacity of the organization primarily due to the creation of consumer confusion. On the other hand, the management of Plainfield Bakery argues that there are no chances of consumer confusion regarding the sale of the biscuit as it is differently packed and the shape of the biscuit is entirely different.
Therefore, the evaluation of the relevant provisions of the act effectively provided a wide variety of psychological evidence that can be effectively utilized to determine the level of consumer confusion occurring due to infringement of the trademark. The psychological evidence is primarily based on the collection of primary and secondary data from survey interviews and the evaluation of relevant literature. Additionally, a wide variety of studies can be directly linked to the principles of cognitive psychology that have inherent aspects about the creation of consumer confusion. The situations also include the creation of information overload, lack of tolerance of ambiguity, the perpetual process for leveling and sharpening, and equivalence range. Therefore, the evaluation of the case study will provide conclusive evidence regarding the level of consumer confusion and the applicability of the Civil lawsuit undertaken by the organization's management in respect to Trademark infringement. The segment will also conduct a detailed evaluation of the legal background of the case and the identification of legal definitions regarding Trademark infringement and consumer confusion.
Legal background
Trademark infringement
Trademark infringement can be effectively identified as the unauthorized and illegal use of a service or trademark that a different business organization or individual already registers. In other words, Trademark infringement can be effectively identified as a violation in respect to the exclusive legal right of an individual or a business organization towards the brand name or the trade or service mark that provides a separate and distinctive unique identity to the business. Under situations where a business or organization is identified to use deceptively similar or identical use of the original trademark that a separate business organization already registers. Then the holder of the original licensee of The trademark can easily proceed with a civil lawsuit to protect its individuality within the industry (Ertekin, Sorescu & Houston, 2018). Trademark infringement primarily occurs when the other business organization develops a similar brand name or symbol that a different business organization already registers. Trademark infringement can effectively lead to an adverse situation for the original Trademark holder and may provide scope for enhancing revenue-generating capacity for other business organizations within the industry. Therefore it becomes essential to effectively district and control Trademark infringement to undertake fair trade practices.
Consumer confusion
Consumer confusion can be effectively identified as a situation where the consumers' state of mind is directly or indirectly puzzled by the use of synonyms or related words in the same sequence or fashion. Consumer confusion Mein conjugated leads towards incorrect purchase as there are high possibilities that the customers will get confused regarding undertaking the buying from a business organization that has initially registered a trademark. In situations of consumer confusion, the customers lack confidence in identifying a specific product from a particular company and, as a result, end up making incorrect purchases (Bone, 2019). The evaluation into consumer confusion concerning Trademark infringement effectively provides a situation where the consumer fails to effectively identify and distinguish the correct product from similar products within the industry. The primary intent of Trademark infringement is to create consumer confusion to ensure that the holder of a trademark within the industry does not get significant chances of establishing a Monopoly or capturing a reasonable share of the consumer market. Therefore through Trademark infringement, other business organizations within the industry can create consumer confusion and ensure a relative distribution of market share, leading to unfair trade practices.
Discussion
The evaluation into the given case effectively provides that Plainfield Bakery Company can be effectively identified as at fault as per the provisions of The trademark act 1995. The primary reason behind the same is that the management of Plainfield Bakery Company has created consumer confusion within the industry by using similar names in respect to similar types of products within the industry. The organization has intentionally named its biscuits so that it can gain appropriate consumer attention and creates consumer confusion for making unlawful gains (To-aj & Suksa-ard, 2020). The evaluation into the case effectively provides that Plainfield Bakery could have effectively renamed its biscuits differently without making indirect use of a product already in existence within the market. Through the effective utilization of a similar name already registered by Arnott’s biscuits, the management of Plainfield Bakery Company also got a significant opportunity to create consumer awareness about similar types of products within the industry. Therefore, this situation also provided a significant opportunity for enhancing the marketability and relative share of the company’s products within the industry (Patel, 2019). Therefore, the case can be effectively identified as a classic example of Trademark infringement. It creates a significant amount of consumer confusion within the industry, resulting in a significant reduction in 11e generating capacity and profitability of Arnott’s biscuits.
Further analysis into the case with the help of the tort liability model effectively provides that the act by Plainfield Bakery company towards similarly naming its biscuits to the products that are already existent within the industry is highly intentional (Tabibi, 2019). The primary reason for the intentional act is that the organization's management could have easily come up with a different name for the products and captured a reasonable share of the consumer market from scratch. Secondly, the type of injury based on the tort liability model is an injury to intellectual property rights that constitutes unfair competition and product disparagement. The international act by Plainfield Bakery Company will significantly reduce the revenue-generating capacity and profitability of the biscuit sold by Arnott’s biscuit and therefore constitutes unfair trade practices. The type of damage can be effectively identified as compensatory under a situation where Plainfield Bakery Company effectively compensates Arnott’s biscuits for the intentional wrongdoing (Kroninger, 2019). Lastly, the excuse based on the tort liability model can be effectively identified as assumed risk as the plaintiff is already aware of the negative consequences of Trademark infringement.
Psychological background
The evaluation and psychological background regarding Trademark infringement effectively provide that consumer psychology plays a significant role in identifying issues about Trademark infringement within the industry. The consumer's perceived view or belief in a specific business organization within the industry can effectively provide conclusive evidence regarding instances of Trademark infringement. There may be instances where two business organizations may sell completely distinctive products within the industry. Still, the psychological mindset of the consumers may lead to the creation of consumer confusion within the industry (Younes & Mustafa, 2021). Business organizations within the industry can effectively utilize this consumer confusion to launch civil proceedings against other businesses based on Trademark infringement. Therefore it can be effectively concluded that the cognitive psychology of the consumer has a significant and direct impact on a Trademark infringement as it is directly associated with the level of consumer confusion.
Further analysis into the cognitive theory effectively provides that it effectively attempts words to identify and explain humans' overall behavior within specific market conditions (Huang, 2018). Therefore based on the cognitive theory, if a consumer is confused between two products within two similar products within the industry based on a wide variety of attributes, there can be significant changes of Trademark infringement. The creation of consumer confusion is primarily driven by the cognitive theory and psychology that represents the similarity between two different products offered by various organizations within the industry (Miggels, 2020). Therefore, to effectively extract conclusive evidence regarding Trademark infringement for the given case, it is essential to extract appropriate information from the direct consumer with the help of a direct consumer confusion survey.
Consumer confusion survey
Component 1
Participants: the participants of the consumer confusion survey in respect to the given case will be the direct customers purchasing the products of both Arnott’s biscuits and Plainfield Bakery Company from a retail store.
The extraction of relevant information from the above-identified group of participants will provide appropriate evidence regarding the level of consumer knowledge in respect to the two products. This analysis will also help extract confusing proof of who the consumer base identifies to be the registered seller of Tim tams (Zavadoff, 2018). Therefore, as a result, this analysis will help identify the level of consumer confusion and develop a favorable conclusion regarding the extent of Trademark infringement.
Method: the method that can be effectively utilized towards extracting the information from the consumer base is a questionnaire under which a specific set of questions will be asked from a wide variety of retail customers to extract data (Wang, 2018).
Component 2
Q1. What is your purpose behind purchasing the identified biscuit?
By effectively identifying the purpose behind purchasing the identified biscuit, the surveyor can quickly identify the extent of consumer knowledge regarding rival products within the industry.
Q2. Did you consider the brand name while making a purchase?
Extracting information regarding the brand name chosen by the customer can provide conclusive evidence about whether the customer has any preference for the brand or not.
Q3. Are you aware of the existence of a similar product?
Extracting information regarding the existence of similar products provides appropriate information in respect to the buying pattern and purchasing decision of the customer.
Q4. Do you have any knowledge of the trademark holder of Tim Tam or vice versa?
This question will provide appropriate information regarding the level of consumer confusion and the level of knowledge the consumer has behind making purchase decisions.
Q5. Did you get confused between Tim Tam and Tams Tim’s
This question will directly help to word identify the level of consumer confusion regarding buying decisions.
Conclusion
The evaluation and Simon effectively provide that it is essential for business organizations to register a trademark effectively to establish a unique and independent identity within the industry. With the help of effective registering, the trademark reorganization can easily capture a relevant share of the consumer market and create a consumer awareness that helps enhance market share and enhances the revenue-generating capacity of the organization in the long run.
References
Bone, R. G. (2019). Rights and Remedies in Trademark Law: The Curious Distinction between Trademark Infringement and Unfair Competition. Tex. L. Rev., 98, 1187. Retrieved from: https://texaslawreview.org/wp-content/uploads/2020/06/Bone.Printer.pdf
Ertekin, L., Sorescu, A., & Houston, M. B. (2018). Hands off my brand! The financial consequences of protecting brands through trademark infringement lawsuits. Journal of Marketing, 82(5), 45-65. Retrieved from: https://www.ama.org/2018/09/12/hands-off-my-brand-the-financial-consequences-of-protecting-brands-through-trademark-infringement-lawsuits/?utm_source=rss&utm_medium=rss&utm_campaign=hands-off-my-brand-the-financial-consequences-of-protecting-brands-through-trademark-infringement-lawsuits
Huang, V. T. (2018). Empirical Analysis of Australian Trademark Infringement Decisions: Implications for the US Trademark Use Debate. Law assignment Santa Clara High Tech. LJ, 35, 1. Retrieved from: https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1642&context=chtlj
Kroninger, T. D. (2018). Awarding Profits in Trademark Infringement Actions: Reconciling the Circuit Split on the Willfulness Requirement with Underlying Trademark Law Rationales. Mich. St. L. Rev., 793. Retrieved from: https://hcommons.org/deposits/download/hc:36180/CONTENT/lrvol2018iss36fulltext.pdf/
Miggels, A. R. (2020). An analysis of trademark infringement by dilution under South African law. Retrieved from: https://etd.uwc.ac.za/bitstream/handle/11394/7329/miggels_m_law_2020.pdf?sequence=3&isAllowed=y
Patel, S. (2019). The IP of IPAs: A Look into Trademark Infringement in the Craft Beer Industry. J. Intell. Prop. L., 26, 249. Retrieved from: https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1444&context=jipl
Tabibi, R. (2019). Good Faith Trademark Infringement: The Ninth Circuit's Approach to the Tea Rose-Rectanus Doctrine. BCL Rev. II-, 60, 65. Retrieved from: https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3747&context=bclr
To-aj, O., & Suksa-ard, P. (2020). Perceived Benefits of Trademark Infringement Law to Thai Sports Industry. Annals of Applied Sport Science, 8(4), 0-0. Retrieved from: http://aassjournal.com/files/site1/user_files_dbc6fd/oamtoaj-A-11-1332-1-f0090b0.pdf
Wang, M. C. (2018). Reconstructing Trademark Infringement Damages from the Perspective of Option Theory. J. High Tech. L., 19, 192. Retrieved from: https://sites.suffolk.edu/jhtl/files/2019/03/Wang-Final-Paper-1b7uhvt.pdf
Younes, A., & Mustafa, H. (2021). Elements to be established by brand owners seeking redress in court for trademark infringement on social media sites. Ilkogretim Online, 20(3). Retrieved from: https://scholar.archive.org/work/56f4ommezjefvjl6mgj26alzam/access/wayback/http://ilkogretim-online.org/fulltext/218-1612580472.pdf?1614144435
Zavadoff, N. (2018). Trademark Infringement and the Lanham Act: The Time for Willfulness to Be Uniformly Defined and Applied under the Lanham Act Is Now. Creighton L. Rev., 52, 71. Retrieved from: https://dspace.creighton.edu/xmlui/bitstream/handle/10504/124240/CLR_52.1_Zavadoff.pdf?sequence=1&isAllowed=y
