Infringement occurs if a mark is likely to cause confusion among consumers. Defenses to infringement include fair use and collateral use. Fair use occurs when the second user, or repossessor, uses a protected mark in a nonconspicuous way to identify a component of a good or service. For example, a restaurant can use a protected mark to advertise that it serves a particular brand of soft drink without infringing the mark. The restaurant cannot, however, identify itself by the mark without infringing the mark.
Collateral use is use of the same mark in a different market.
For example, assume that a tree surgeon has received trademark protection for the mark Tree Huggers. This protection may not prevent a business that sells logging boots from obtaining the same mark. However, if the mark for the boots is written or otherwise appears with the same defining characteristics as the mark for the tree surgeon, it risks being denied trademark protection, depending on whether it can be confused by consumers. Remedies for infringement of a protected trademark consist of damages for the profits lost owing to the infringement, recovery of the profits realized by the infringer owing to the infringement, and attorneys' fees. A trademark holder may also obtain injunctive relief to prevent infringement.