Federal Trademark Infringement- Likelihood of Consumer Confusion (Lanham Act S43(a))

a) Section 4 (a) provides that the plaintiff must prove the following: 1) that the defendant's domain name is identical or confusingly similar to a trademark or service mark in which the plaintiff has rights; and 2) the defendant has no rights or legitimate interests in respect of the domain name; and 3) the domain name has been registered and is being used in bad faith.

Under this section of the act, the court must first evaluate whether or not the defendant's domain name is identical or confusingly similar to a trademark or service mark in which the plaintiff has rights. In evaluating the likelihood of confusion, the court may look at a variety of factors. Some of these may include: similarity of sight, sound or meaning between marks, the strength of the plaintiff's mark, the defendant's intent or bad faith in adopting a similar mark, the proximity or relatedness of goods, instances of consumers' actual confusion, marketing channels, the sophistication of goods, and the likelihood of expansion.

The marks in question are identical in sound, meaning and spelling. The plaintiff

The plaintiff has used its 49 Hours marks since at least January 1988. Throughout the 12 years, the mark has gained recognition throughout the United States as a television news show. The defendant registered the domain name in May of 1997. Therefore, plaintiff's mark had already become famous.

The strength of Plaintiff's mark is unquestionable. They have asserted 12 years of use of the 48 hours mark. Throughout the United States they have vast notoriety as a television news program. "The more likely a mark is to be remembered and associated in the public mind with the mark's owner, the greater protection the mark is accorded by trademark laws." (Kenner Parker Toys Inc. v. Rose Art Indus., Inc.,)

is the registered owner of the US service mark "48 Hours" and device in Class 41 for "television news program services." The defendant is the registered owner of "www.48Hours.com." They differ only in sight for the defendant's logo is featured in differing font and color from that of Plaintiff's.

b) For the above-stated reasons, the plaintiff should not be granted preliminary injunction on the basis of this claim. GoTo.com, Inc., v. The Walt Disney Company, found that "...use of remarkably similar trademarks on different web sites creates a likelihood of confusion amongst Web users." Federal trademark infringement guidelines state that the plaintiff must establish all 3 requirements listed above. The plaintiff is able to prove that 1) the mark is identical and 2) that the defendant has no rights or legitimate interests in the name but fails to meet the third requirement. Though the name is registered, there is no proof that it is being used in bad faith. Thus preliminary injunction should not be granted under the Lanham Act S43(a).

b) The court must first look at whether or not Plaintiff's mark is in fact famous. The requirements of whether or not a mark is famous must meet the following criteria: 1) the degree of inherent or acquired distinctiveness of the mark; 2) the duration and extent of use of the mark in

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Approximate Word count = 1377
Approximate Pages = 6 (250 words per page double spaced)