Your brand is likely already being impersonated somewhere online.
In the demo we show you:
How many active threats target your brand right now
How quickly Astra detects them
How fast they can be removed with instant approval
Trademark infringement occurs when a party uses a mark in commerce that is identical or confusingly similar to a registered trademark, without authorization, in a way that is likely to cause consumer confusion about the source of goods or services.
Trademark infringement is defined under the Lanham Act, the principal federal statute governing trademarks in the United States. Section 32 (15 U.S.C. Section 1114) addresses infringement of registered marks, while Section 43(a) (15 U.S.C. Section 1125(a)) extends protection to unregistered marks and trade dress.
To establish infringement, a plaintiff must demonstrate two elements: that it owns a valid and protectable mark, and that the defendant's use of a similar mark in commerce is likely to cause confusion as to the source, sponsorship, or affiliation of the goods or services. The plaintiff does not need to prove that actual confusion has occurred — only that confusion is likely. This distinction is critical: likelihood of confusion is assessed prospectively, based on the totality of the circumstances, not on whether specific consumers were actually deceived.
The "use in commerce" requirement means the mark must be used in connection with the sale, offering for sale, distribution, or advertising of goods or services. Purely non-commercial uses — such as parody, criticism, or comparative commentary — may be protected under the First Amendment or fair use doctrines.
Federal courts apply a multi-factor test to determine whether a likelihood of confusion exists. The specific factors and their names vary by circuit, but the analysis is substantively similar across jurisdictions.
The Polaroid factors, established by the Second Circuit in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961), set out eight considerations. The Sleekcraft factors, used by the Ninth Circuit from AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979), similarly enumerate eight factors. Other circuits have their own formulations — the Fifth Circuit uses Digits, the Sixth Circuit uses Frisch's, and the Seventh Circuit uses Helene Curtis — but all examine substantially the same considerations.
The core factors across circuits include:
No single factor is dispositive. Courts weigh them collectively, and different factors may carry more weight depending on the facts of the case.
Direct infringement is the most common form. The defendant uses a mark in commerce that is identical or confusingly similar to the plaintiff's mark, and that use creates a likelihood of confusion among consumers as to the source or sponsorship of goods or services.
The defendant need not have intended to infringe. Intent is relevant to the analysis — particularly to the likelihood of confusion factors and to damages calculations — but it is not an element the plaintiff must prove.
Contributory trademark infringement applies to parties who do not directly use the infringing mark but facilitate or enable infringement by others. Under the standard established in Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982), a party is contributorily liable if it intentionally induces another to infringe, or if it continues to supply a product or service to one whom it knows or has reason to know is engaging in infringement.
The Second Circuit's decision in Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010), clarified that generalized knowledge that some users of a platform engage in infringement is insufficient — the defendant must have knowledge of specific instances of infringement and fail to act. However, willful blindness to specific infringement satisfies the knowledge requirement.
This standard is directly relevant to online brand protection. Marketplace operators, hosting providers, and domain registrars may face contributory liability if they have specific knowledge of infringing activity on their platforms and fail to take action.
Counterfeiting is a subset of direct infringement involving the use of a spurious mark that is identical to, or substantially indistinguishable from, a registered mark. Under 15 U.S.C. Section 1116(d), counterfeiting carries enhanced civil remedies, including the availability of ex parte seizure orders and statutory damages. It also triggers potential criminal liability under 18 U.S.C. Section 2320.
The distinction between counterfeiting and ordinary infringement matters for remedies. Counterfeit marks must be virtually indistinguishable from the genuine mark — not merely similar. The goods must also be of the same type as those covered by the registration.
The internet has expanded both the scale and the forms of trademark infringement. The most common manifestations include:
Infringing domain names. Cybersquatting (registering a trademark as a domain name in bad faith), typosquatting (registering common misspellings of a trademark), and combosquatting (appending words to a trademark, such as brandname-outlet.com or brandnamelogin.com) all constitute uses of a mark in commerce that can support infringement claims. Domain-based infringement is actionable under the Lanham Act, the Anticybersquatting Consumer Protection Act (ACPA), and ICANN's Uniform Domain-Name Dispute-Resolution Policy (UDRP).
Counterfeit websites. Websites that sell counterfeit goods bearing unauthorized trademarks — often replicating the visual design and branding of the legitimate brand's website — constitute both trademark infringement and counterfeiting. These sites frequently use the trademark in the domain name, page content, meta tags, and product descriptions.
Keyword advertising. Purchasing a competitor's trademark as a search engine keyword to trigger advertisements is a common practice. In Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. 2009), the Second Circuit held that selling trademarks as keyword triggers constitutes a "use in commerce" under the Lanham Act, allowing infringement claims to proceed. The outcome then depends on whether the ad and landing page create a likelihood of confusion.
Social media impersonation. Creating accounts on social media platforms that use a brand's name, logo, or other trademarks to impersonate the brand or mislead consumers. Most major platforms have trademark complaint processes, but enforcement relies on detection and reporting.
The Lanham Act provides several categories of civil relief for trademark infringement.
Injunctive relief. Under 15 U.S.C. Section 1116, courts may issue temporary restraining orders, preliminary injunctions, and permanent injunctions to stop infringing activity. Injunctions are the most common and often the most valuable remedy — they halt the infringement going forward.
Monetary damages. Under 15 U.S.C. Section 1117(a), a successful plaintiff may recover the defendant's profits from the infringement, the plaintiff's actual damages resulting from the infringement, and the costs of the action. The court has discretion to adjust the defendant's profits or the plaintiff's damages upward or downward, subject to principles of equity. In cases involving willful infringement, the court may award up to three times the actual damages or profits.
Attorney's fees. Under 15 U.S.C. Section 1117(a), the court may award reasonable attorney's fees to the prevailing party in "exceptional cases." The Supreme Court in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), established that an exceptional case is "simply one that stands out from others," giving courts broad discretion.
Statutory damages for counterfeiting. Under 15 U.S.C. Section 1117(c), a plaintiff who establishes counterfeiting may elect statutory damages instead of actual damages or profits. The range is $1,000 to $200,000 per counterfeit mark per type of goods or services sold. For willful counterfeiting, the maximum increases to $2,000,000 per counterfeit mark per type.
Destruction of infringing materials. Under 15 U.S.C. Section 1118, the court may order the destruction of all labels, signs, packages, wrappers, receptacles, and advertisements bearing the infringing mark, as well as all plates, molds, and other means of making the same.
Criminal prosecution for trademark-related offenses is limited to counterfeiting. Under 18 U.S.C. Section 2320, trafficking in goods or services bearing counterfeit marks carries significant penalties:
Trademark infringement and trademark dilution are distinct causes of action with different requirements and purposes.
| Infringement | Dilution | |
|---|---|---|
| Legal standard | Likelihood of confusion | Likelihood of dilution (blurring or tarnishment) |
| Mark requirement | Any valid trademark (registered or unregistered) | Famous marks only |
| Confusion required | Yes | No |
| Competing goods required | No, but proximity is a factor | No — applies even with unrelated goods |
| Types | Direct, contributory, counterfeiting | Blurring (weakening distinctiveness), tarnishment (harming reputation) |
| Remedies | Injunction, damages, profits, statutory damages (counterfeiting) | Injunction; damages only if willful |
| Federal statute | 15 U.S.C. Sections 1114, 1125(a) | 15 U.S.C. Section 1125(c) (Trademark Dilution Revision Act of 2006) |
Dilution under the Trademark Dilution Revision Act (TDRA) protects famous marks from uses that diminish their distinctiveness (blurring) or harm their reputation (tarnishment), regardless of whether consumers are confused. The mark must be "widely recognized by the general consuming public of the United States" — a high bar that excludes niche or industry-specific marks.
Domain name disputes involving trademarks can be resolved through three primary mechanisms, each with distinct characteristics.
The UDRP is an administrative proceeding administered by ICANN-approved providers, most commonly WIPO and the Forum (formerly the National Arbitration Forum). The complainant must prove three elements: the domain is identical or confusingly similar to a trademark; the registrant has no rights or legitimate interests in the domain; and the domain was registered and is being used in bad faith.
UDRP proceedings typically resolve within approximately 60 days. Filing fees for a single-member panel are approximately $1,500. The only available remedies are transfer of the domain to the complainant or cancellation — monetary damages are not available. UDRP decisions are not binding on courts, and either party may subsequently file a lawsuit.
The ACPA, codified at 15 U.S.C. Section 1125(d), provides a federal cause of action for cybersquatting. Unlike the UDRP, ACPA proceedings take place in U.S. federal court and allow for monetary relief. Statutory damages range from $1,000 to $100,000 per domain name, at the court's discretion.
ACPA also provides for in rem jurisdiction against the domain name itself when the registrant cannot be found or is outside U.S. jurisdiction — a significant advantage when dealing with anonymous or overseas squatters.
The URS is a faster and lower-cost alternative to the UDRP, available only for domains registered under new gTLDs (those introduced since 2012). The complainant must demonstrate a clear case of infringement by a preponderance of the evidence — a higher standard than the UDRP. Filing fees are approximately $375 for up to 15 domain names.
The sole remedy under the URS is suspension of the domain for the remainder of the registration period. The domain is not transferred to the complainant. URS proceedings typically conclude within approximately 20 days, making it the fastest formal mechanism for addressing domain-based trademark abuse.
In the demo we show you:
How many active threats target your brand right now
How quickly Astra detects them
How fast they can be removed with instant approval
Fight AI with AI
hello@astraobp.com
Cookies on Astra
We use a small set of cookies to run this site and understand how it's used. Essentials are always on. Privacy details.
