E. There Is a Likelihood of Confusion Because Defendant Intentionally (And in Bad Faith)

e. There is a likelihood of confusion because Defendant intentionally (and in bad faith) used a mark similar to the senior user

The Third Circuit has held that evidence of intentional, willful and admitted adoption of a mark that is closely similar to the senior user's mark weighs strongly in favor of finding a likelihood of confusion. Kos, 369 F.3d at 721; Checkpoint, 269 F.3d at 286. In determining what is intentional and willful the court evaluates whether the defendant investigated its mark before adopting it. Kos, 369 F.3d at 721; Fisons 30 F.3d at 480. If the court finds that a defendant knew or should have known that its mark was similar to a senior user, its use will be determined inappropriate or in bad faith. (cite)

There are various cases that demonstrate exactly why the replication of the trademark was purposeful and in bad faith. In X, the court found bad faith copying when Y happened. In X2, the court found bad faith copying when Y2 happened.

The facts demonstrate Defendant purposely copied Plaintiff’s senior mark and did so in bad faith. Bad faith can be determined by looking at whether Defendant knew or should have known of plaintiff’s senior mark in the field. (cite) Here, the world knows that Drummond is famous for its pipettes and dispensers. They are used worldwide and even at the famous Cleveland State University. Moreover, in X2, the court held there was bad faith purposeful use of a senior mark when Y2 happened. (cite) Here, similarly there is no indication that Defendant did any research at all to determine whether the mark was being used. This, the court should find demonstrates the Defendant’s bad faith, and as a result should convince the court that the plaintiff has demonstrated consumer confusion.