Drug Company Pained by CVS's Alleged Trademark Infringement.

NEW YORK, June 5, 2009 -- New Jersey's First Aid Research Corporation began legal proceedings today against drug store giants CVS by accusing them of trademark infringement.

The action initiated in the U.S. District Court for the Eastern District of New York alleges that CVS infringed upon the federally registered trademark BACITRAYCIN PLUS by releasing a competing anti-bacterial ointment under the brand BACITRAYCIN+.

The primary purpose of trademark infringement laws is to prevent consumer confusion regarding the source of goods and services. The first party to use a trademark may prohibit other parties from using a mark subsequently in connection with similar goods or services if it so resembles the original mark as to cause confusion. If the later mark is so similar, it is deemed to infringe on the prior mark.

When the United States Patent & Trademark Office (USPTO) examines a trademark as part of the registration process, the Examining Attorney compares the mark against trademarks that are already registered. Two marks with minor deviations in spelling are deemed as being confusingly similar.

In assessing damages of a federally registered trademark, the court may enter judgment for any sum above the amount found as actual damages, up to three times. When a court finds a defendant intentionally counterfeited a registered trademark, the court must, unless the court finds extenuating circumstances, enter judgment for three times such profits or damages, whichever is greater, together with a reasonable attorney’s fee unless the Plaintiff elects for statutory damages up to $1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed.

A trademark can become generic, and therefore not entitled to protection, when it becomes generally synonymous with an item and no longer identifies its source. HEROIN and ASPIRIN were once recognized in the United States as valid trademarks before they became generic.

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