Despite the number of factors, the criteria is fundamentally similar across circuit courts. A trademark infringement will depend upon, among other factors:
- strength/distinctiveness of plaintiff trademark;
- proximity/competitiveness of plaintiff and defendant’s business;
- comparative quality of plaintiff and defendant’s products;
- evidence that the imitative trademark was adopted in bad faith; and
- sophistication of consumers in relevant markets, and evidence of confusion.
IDK, some of those read as if you can't wake up one morning and then decide you've been violated.
For example, if WP Engine acted in bad faith, why was it bad faith in 2024, but not prior? It's difficult to argue bad faith when you watched - and enabled? - a company to go from zero to "billions".
If fact, that lens applies to most of this list. These conditions existed all along and MM & Co was silent.
On the other hand look at Apple (Computers) and Apple (Records). Once Apple Computer enter the mmusic market they had to negotiate with Apple Records because Apple Music's change in direction would cause confusion in the market.
Extinguish? Maybe not. But if you don't defend your trademark your argument for violation dilutes more and more as time goes on, true? "Billions" feels like a long time. "Billions" - and how MM went about it - feels very much like a "trademark troll".
Even if he wins the battle. He's lost the war. The community no longer trusts and respects him.
Copyright can’t be extinguished by common use. Trademarks can.