As Ron Coleman points out, the key test to determine whether a trademark infringement claim is valid is whether an offending advertisement creates a "likelihood of confusion" with a prior issued trademark.  That a trademark has some value may be presumed, until the court is required to determine damages, at which time its actual value is determined.

Here's a case where that presumption might not be valid.

Miami-based Burger King Corp. alleges … Steak n Shake’s name for slider-style hamburgers, Steakburger Shots, is “confusingly similar” to trademarked Burger King names. They include BK Burger Shots, BK Breakfast Shots and BK Chicken Shots.

Like any red-blooded American, I enjoy a good hamburger, and find Burger King's hamburgers, if not its french fries, better than those of its fast food competition.  But I find the entire concept of a "slider burger," not to mention "Burger shots," "Chicken shots," or for that matter a "Steakburger shot" uncomfortably, well … digestive in nature.  In fact, I'm unlikely to eat anything described as a "meat shot," no matter how tasty it may look, and assume the same is true for others.  Perhaps Steak 'n' Shake should pursue this promising defense as the litigation unfolds.

At the same time, I am quite aware of the BK Burger Shot, for reasons that have nothing to do with its name or quality as a hamburger:

Expect Steak 'n' Shake to argue that since Burger King cannot trademark cleavage, the claim has no merit.

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