Trademark infringement is the unauthorized use of a trademark, or a similar sign, on goods or services in a way likely to confuse buyers about who makes or backs them. The key test in the US and the EU is likelihood of confusion. Counterfeiting, an identical or nearly identical mark on fake goods, is the most serious form.
Trademark infringement is the unauthorized use of a trademark, or a sign close to it, on or in connection with goods or services in a way that is likely to confuse buyers about who makes them or who stands behind them. In both the US and the EU, the central question is likelihood of confusion. Counterfeiting, the use of an identical or nearly identical mark on goods the owner did not make, is the most serious form.
This guide explains the idea in plain words, shows what infringement looks like on marketplaces, sets out what counts as evidence and summarizes the remedies. It is general information, not legal advice: trademark cases turn on their facts and on the law of each country.
Trademark infringement in plain words
A trademark is a sign that tells buyers where a product comes from: a name, a logo, a slogan, sometimes a shape or packaging. The USPTO describes infringement as unauthorized use of a mark on or in connection with goods or services in a way likely to cause confusion, deception or mistake about their source.
Three ideas sit behind that definition:
- Use in trade. The mark is used to sell, offer, distribute or advertise goods or services. A product listing, a package, an ad or a store name all count.
- Without consent. The owner has not licensed or authorized the use.
- Likely confusion. Buyers could reasonably believe the goods come from the owner, or are made, sponsored or approved by them. Actual confusion is not required: the risk of it is enough.
According to the USPTO, a plaintiff in the US generally has to show that it owns a valid mark, that its rights come first, and that the other party's use is likely to cause confusion.
How likelihood of confusion is judged
In the United States
The federal trademark law, the Lanham Act, covers registered marks (15 U.S.C. 1114) and unregistered marks and trade dress (15 U.S.C. 1125(a)). Courts do not apply one mechanical test. The USPTO lists the considerations courts commonly weigh:
| Factor | The question it asks |
|---|---|
| Similarity of the marks | Do they look, sound or mean the same? |
| Relatedness of the goods | Would buyers assume the products share a source? |
| Marketing channels | Are they sold and advertised in the same places? |
| Buyer care | Are these quick, low-cost purchases or considered ones? |
| Actual confusion | Is there evidence of real buyers being misled? |
| Intent | Did the seller choose the mark to trade on the owner's reputation? |
| Strength of the mark | How distinctive and well known is the owner's mark? |
The more similar the marks, the less related the goods need to be. Two identical marks can coexist when the goods are unrelated, which is why a registration lists specific goods and services.
In the European Union
The EU trade mark regulation gives the owner of an EU trade mark the right to stop others, in the course of trade, from using three kinds of sign: an identical sign on identical goods, where confusion does not need to be shown; an identical or similar sign on identical or similar goods, where there is a likelihood of confusion, including a likelihood of association; and, for marks with a reputation, signs that take unfair advantage of or harm that reputation. National trade marks in EU countries follow the same principles.
The practical effect is similar on both sides of the Atlantic: the closer the copy and the closer the products, the stronger the case.
Marketplace examples
Infringement on marketplaces rarely looks like a court case. It looks like a listing. These are the patterns rights owners report most often, with the usual way they are analyzed. Whether a particular listing infringes depends on its facts.
| Pattern | What it looks like | How it is usually analyzed |
|---|---|---|
| Brand name in the title | A generic product titled with your brand name, as if it were yours | Likely infringement when buyers could think it is your product |
| Logo on the product or images | Your logo printed on the item, the box or the listing photos | Strong infringement claim, and a counterfeit if the goods imitate yours |
| Lookalike packaging | Same colors, layout and shape as your box, with a different name | Possible trade dress claim if your packaging is distinctive and not functional |
| Keyword stuffing | Your brand name repeated in the title, bullets or tags of an unrelated product | Often a breach of marketplace listing rules; infringement depends on whether it misleads buyers |
| Similar brand name | A name one letter away, or a translation of yours | Judged on likelihood of confusion: sound, look, meaning and goods |
| "Compatible with" claims | Accessories that name your product to describe what they fit | Often permitted when accurate and not presented as your product |
Genuine goods, unauthorized seller
Reselling genuine products under their real brand name is generally not trademark infringement, even when the seller is outside your distribution network. The picture can change if the goods are materially different from what you sell in that market. Our guide to grey market goods covers this case.
Counterfeiting: the most serious form
US law defines a counterfeit as a spurious mark that is identical with, or substantially indistinguishable from, a registered mark. A counterfeit product therefore copies both the goods and the mark, so that buyers believe they are getting the real thing.
Counterfeits are treated more severely than other infringements. Under 15 U.S.C. 1117, a court can multiply profits or damages by three in counterfeiting cases, and the owner can choose statutory damages instead: from $1,000 to $200,000 per counterfeit mark per type of goods, and up to $2,000,000 when the use is willful. Marketplaces also act fastest on counterfeits, because they put buyers at risk. Our guide to counterfeits, knockoffs and dupes explains where copying stops being legal.
What counts as evidence
Whether you report to a marketplace or hand a case to counsel, the questions are the same: whose right is it, what exactly was used, and why is it confusing or fake.
- Your rights. The registration number, the office that issued it and the goods it covers. For an unregistered mark, evidence of use: sales, ads, dates.
- The use. The listing URL and ID, the seller's name and store page, and a dated capture of the page, because listings change.
- The comparison. Side-by-side images of your mark and the listing, and of your genuine product and the copy.
- Proof the product is not genuine. For counterfeits, a test purchase is usually the strongest evidence: packaging, labels, codes and materials you can compare with your own.
- Signs of confusion. Customer reviews, returns or messages from buyers who thought they were buying from you.
- Scale and repetition. Other listings by the same seller, and earlier reports.
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New searchENOur counterfeit evidence checklist turns this list into a one-page table you can reuse.
What you can do about it
Most online infringements are handled without a lawsuit. A practical order of steps:
- Confirm the right and the use. Check that your registration covers the goods in the listing, and that the listing uses your mark or something close to it.
- Capture the evidence. Save the URL, a dated copy of the page and the seller's details before you act.
- Report to the marketplace. Use the platform's IP reporting program and choose the right claim type: trademark, counterfeit or copyright.
- Follow up. Check whether the listing was removed and whether the seller relists.
- Escalate the hard cases. For repeat sellers or large-scale copying, consider a cease and desist letter or counsel.
Remedies in general terms
If a case reaches court, the remedies depend on the country. In the US, the USPTO summarizes the main ones as a court order stopping the use, destruction or forfeiture of infringing articles, and monetary relief: the defendant's profits, the owner's damages and the costs of the action, with attorney fees in some cases. Counterfeiting adds the enhanced and statutory damages described above.
In the EU, remedies are set by national courts and include injunctions, damages and the recall or destruction of infringing goods. A mark with a reputation can also be protected against uses that do not confuse but take unfair advantage of it. In the US, famous marks have a comparable protection against dilution.
Be careful with accusations
An infringement claim made without a basis can backfire. A recipient can challenge it, and some countries have specific rules against unjustified threats. Check your rights and your evidence before you report or send a letter.
How Valigard helps
Valigard helps with the finding and the evidence. It searches marketplaces worldwide with your official product photos, so it surfaces listings that reuse your images even when they avoid your brand name. Results with both a name match and a photo match are tagged, and for each listing you mark as likely counterfeit Valigard keeps the URL, title, price, seller details and a saved, timestamped copy of the page.
Valigard does not decide whether a listing infringes with legal certainty and does not send reports: you file on the marketplace using its reporting guide, then log the status and case number.
Frequently asked questions
What counts as trademark infringement?
In general, using a mark that is identical or similar to someone else's mark, on related goods or services, in a way that is likely to cause confusion about the source or sponsorship. The use must be in trade, for example in a product listing, on packaging or in advertising. Courts weigh the facts of each case.
Is it trademark infringement to use a brand name in my listing?
It depends on how. Using another brand's name to suggest that your product is theirs, or made or approved by them, can infringe. Accurately stating that a product is compatible with a branded item, or reselling genuine goods, is often treated differently. The line depends on the facts and the country, so check with counsel.
What is the difference between trademark infringement and counterfeiting?
Counterfeiting is a type of infringement. US law defines a counterfeit as a spurious mark that is identical with, or substantially indistinguishable from, a registered mark. Counterfeits copy the mark itself, while other infringements may use a mark that is only similar. Counterfeiting carries heavier remedies.
Do I need a registered trademark to claim infringement?
Not always. In the US, rights in a mark can arise from use, and unregistered marks can be protected under federal law. A registration makes enforcement much easier, because it creates legal presumptions of ownership and validity, and most marketplace programs ask for a registration number.
What happens if someone infringes my trademark?
Most online cases are resolved by reporting the listing to the marketplace. If that fails, the owner can send a cease and desist letter or sue. Courts can order the use to stop, the destruction of infringing goods and payment of profits, damages and costs, with heavier awards for counterfeits.
Sources
- USPTO: About trademark infringement
- USPTO: Likelihood of confusion
- Cornell LII: 15 U.S.C. 1114, Remedies; infringement
- Cornell LII: 15 U.S.C. 1117, Recovery for violation of rights
- Regulation (EU) 2017/1001 on the EU trade mark, Article 9
Last reviewed 27 Sep 2026. Marketplace procedures change; check the official pages before you file. This guide is general information, not legal advice.