Defenses Against Trademark Infringement
Laches, Acquiescence and “unclean hands” are defenses to trademark infringement causes of action. Laches is when a plaintiff has a duty to promptly bring a claim for a preliminary injunction (a bar to stop further infringment) once the plaintiff knows or should have known of possible infringement. If the plaintiff unduly delays a claim for an injunction, then the plaintiff weakens their claim of irreparable injury and may not receive damages or other monetary relief. Acquiescence is when a plaintiff implicitly or explicitly assures the defendant that they will not assert their trademark rights. In this instance, the plaintiff may prevent themselves from obtaining an injunction or damages. “Unclean hands” is when the plaintiff’s conduct in connection with the mark was illegal or unconscionable. In this case, the plaintiff’s claim may be barred.
In sum, a defendant may also have a fair use defense against a trademark owner’s infringement claim for any fair use of a famous mark by another that is not used as designation of the source of the third party’s own goods or services. This includes descriptive and nominative fair use, ads or promotions to compare goods or services, for identification, parodying, criticizing or commenting purposes and any noncommercial use.