Trademark Infringement Litigation: Attorney Defending Your Trademark Rights
Trademark infringement is the unauthorized use of a trademark in connection with the sale of goods or services.
A trademark infringement happens when one party misuses an existing trademark and uses it to promote their company’s goods over another company’s products. Infringement may occur when someone uses a similar mark to your own without your permission and in a way that is likely to cause confusion among consumers.
If you don’t take action to stop trademark infringement, you could eventually lose your trademark rights. Additionally, if you are found to have knowingly allowed someone to infringe on your trademark, you could be liable for damages.
If you believe that someone is infringing on your trademark, you should contact an experienced intellectual property attorney who can help you assess the situation and take appropriate action.
What Is Trademark Infringement?
Under trademark law, there has been an infringement when someone else makes use of a device to trick customers into thinking that the products or services are linked to or endorsed by your company. Multiple parties should only use the same mark in cases where the parties’ goods are not so similar that consumers would become confused. Common law trademarks are only enforceable in jurisdictions without prior usage of identical or similarly styled logos. Federally registered trademarks receive nationwide protection because of their broad scope.
Litigation For Trademark Infringement
Trademark infringement litigation is used to protect the intellectual property of trademark owners. The claimant must demonstrate that there is a possibility of confusion among consumers as a result of the defendant’s use of the mark. The defendant may be liable for damages, including lost profits if they are found to have infringed the plaintiff’s trademark.
The plaintiff must prove that the defendant’s use has increased the risk of confusion in the market in order to succeed in an infringement lawsuit. A trademark owner does not need to show that their mark is identical to the defendant’s trademark to win an infringement case.
If you own a trademark, you may commence legal proceedings against someone who is infringing your trademark. The party infringing your trademark may be liable for damages.
How Can Trademark Infringement Be Established?
The plaintiff must first demonstrate that they have a trademark right that can be enforced before they may prove trademark infringement. Additionally, the plaintiff must demonstrate that there is a possibility of confusion as a result of the defendant using the mark. The plaintiff must demonstrate that the defendant is using a confusingly similar mark in a way that increases the probability of confusion in order to prove trademark infringement.
Are There Defenses to Trademark Infringement?
There are several defenses that can be used if someone is accused of trademark infringement. One defense is that the trademark was obtained fraudulently. Another defense is that the mark is considered to be descriptive of the product or service. The defendant can also use the defense of fair use or parody if they can demonstrate that the use of the mark was not harmful to the plaintiff’s business.
What Are Types Of Trademark Infringement?
Dilution Of Famous Marks
Trademark dilution occurs when a trademark is used without the permission of the owner in a way that diminishes the value of the mark. To avoid trademark dilution, businesses should make sure their goods or services don’t compete with those of the trademark owner and that they’re not using similar trademarks. Deception can also lead to trademark dilution, as can unauthorized use or unauthorized licensing of a trademark. To avoid these issues, it’s important that trademarks are distinctive and well-known.
Dilution of a renowned mark occurs when the use of a mark by someone other than the owner diminishes the mark’s distinctiveness. Diluting can occur through blurring or deterioration. Blurring occurs when a mark becomes less distinctive as a result of its use on unrelated products. A mark is tarnished when it is utilized improperly or in conjunction with substandard items.
Examples of dilution include the use of a well-known corporate name on counterfeit goods or the use of a celebrity’s name to sell goods that are not endorsed by the celebrity.
Failure to Police a Mark
When a trademark owner fails to enforce his or her mark, the mark can become “genericized.” This occurs when the public uses the mark to refer to the product or service, as opposed to the brand alone. Even though it is a registered trademark of Johnson & Johnson, “Band-Aid” is now commonly used as a generic name for adhesive bandages.
If a trademark becomes generic, the owner may lose the right to its exclusive use. This means that other businesses may begin using the brand without paying licensing fees. Additionally, genericization might harm a brand’s goodwill and reputation.
To prevent your trademark from becoming genericized, you must monitor its usage and ensure that others are using it correctly (i.e., as a brand name and not as a general term for the product or service). You can accomplish this by sending cease-and-desist letters to companies or individuals who are misusing your trademark and by running advertisements or campaigns that educate people on how to use your brand responsibly.
Likelihood of Confusion
A likelihood of confusion is when two companies are using the same name or trademark. If a company is using a name or trademark that is already being used by another company, there is a high likelihood of confusion. If a company does not take steps to prevent the likelihood of confusion, it can be held liable for trademark infringement. The likelihood of confusion is determined by looking at eight factors, including similarity of the marks, the proximity of the goods, evidence of actual confusion, and marketing channels used.
Trademark bullying is the use of strong intimidation tactics to try and stop someone from trademarking a name or logo. Trademark bullying can be done by individuals or businesses who feel that their trademark rights are being infringed upon.
Some examples of trademark bullying include sending cease and desist letters, filing lawsuits, and making threats. These actions can be taken even if there is no likelihood of confusion between the two trademarks.
If you believe that your trademark is being bullied, there are steps you can take to protect it. It is important to stand up for your rights and fight back if you are the victim of trademark bullying.
Handling a Trademark Infringement
If someone is infringing on your trademark, you should first contact them in an attempt to resolve the issue. If the infringement is not resolved, you may need to take legal action by filing a lawsuit. The success of a lawsuit to stop the infringement depends on whether the defendant’s use causes confusion in the average consumer. You can file a lawsuit in state or federal court if you believe someone is infringing on your trademark.
Preventing Trademark Infringement
Step 1: Do a trademark search
To avoid infringing on another company’s trademark, it is important to conduct a thorough online search and USPTO trademark search. Investing a small amount of time in the onset can save against future complications.
When doing a trademark search, businesses should consider changing a trademark if it is less expensive than potential damages in litigation. Always considering adopting a trademark if it is less likely to cause legal issues in the first place, and work with experienced legal counsel if something does go wrong.
Step 2: Trademark registration
It is important to educate yourself on trademark rules and to consult an attorney before registering a trademark. Registration is not always required, but it offers protection from infringement claims. Registering a trademark with the USPTO gives you legal protection. Filing a trademark infringement lawsuit in federal court is easier for the trademark owner if they have registered their mark with the USPTO.
Step 3: Use your trademark
If you own a trademark, you can use it to prevent others from using your name, logo, or other intellectual property without permission. This is done by sending a trademark infringement notice to the person who posted the infringing content. The notice must include the trademark owner’s name, address, and contact information. The notice must be sent to the person who posted the infringing content.
Step 4: Police your trademark
It’s important for business owners to educate themselves on trademark law before using a mark. They can do an online search to see if anyone has used a similar mark before. If the business feels they have a strong trademark, they should consult an attorney to register it.
Use online search engines and databases to make sure no one is using your trademark without your permission. Don’t make any changes until you have discussed them with the trademark owner. Don’t spend money on a trademark without first ensuring it is legally safe to do so. Work with experienced trademark lawyers to help avoid infringement. Consider adopting a proposed mark, but be prepared for a cease-and-desist demand or lawsuit if you do. Changing a trademark can be less expensive than litigation, but always consider this option.
If you have a large revenue stream associated with your trademark, you are more likely to be at risk of infringement. There are some measures you can take to avoid infringement, such as conducting searches and consulting with experienced attorneys. You should also be aware that changing your trademark may be less expensive than litigating an infringement claim.
Grounds for Trade Mark Infringement Cases
1. Use of Counterfeit Marks
A counterfeit mark is a mark that is registered with the USPTO for use in selling, offering, or distributing a product or service that is the same as one already registered. The use of a counterfeit mark can result in litigation under section 10(2)(a) & (b) of the Trade Marks Act. If someone uses a trademarked sign in relation to goods or services that are identical or similar to those of the registered trademark, this is known as a counterfeit mark and can be used in litigation.
2. Infringement of Trade Dress
Infringement of trade dress occurs when one party uses a trademark that is identical or confusingly similar to a trademark owned by another party without authorization. For example, if you own the trademark for “Purdue Trademarks and Licensing,” someone using “Purdue Trademarks” without permission would be infringing on your mark. Infringing parties may be liable for damages, including lost profits and lost goodwill.
4. False Advertising
False advertising is using a trademark without the owner’s permission and can be used in litigation to establish ownership of the trademark. False advertising can also be used to win damages from the company using the marks. To file a trademark infringement lawsuit, a plaintiff must show that they have the right to the trademark and that the defendant is using a similar mark. The likelihood of confusion between the two trademarks is determined by looking at factors such as the similarity of logos, name, and product. If a plaintiff can prove confusion, they may be able to win their case. False advertising can also be used in litigation to prove that a company has made false claims about its product. The factors that courts will consider in a false advertising case include the nature of the advertisement, the context in which it is presented, and the target audience.
5. Unfair Competition
Unfair competition is when one company tries to compete unfairly with another company. This can involve using a trademark or service mark without permission, which is likely to cause confusion, deception, and mistake. There are different bases for claiming trademark infringement, and the defendant may have various defenses.
When goods or services are in direct competition, there is a likelihood of confusion. When goods or services are related, other factors may be relevant to determining the likelihood of confusion. The factors which can be used to determine if there is unfair competition include the strength of the mark, the similarity of the marks, evidence of actual confusion, and the marketing channels used.
Fair Use Doctrine
The Fair Use Doctrine allows a party to use a trademark as a descriptive term, rather than for its association with a brand, goods, or services. This can apply where the trademark is used in the context of commentary or criticism. There are two affirmative defenses available to defendants in a trademark infringement lawsuit: fair use and parody.
Fair use occurs when the use of a mark is for its descriptive purpose, without causing confusion among consumers. The use of a mark in a nominative way is also a fair use defense. This means that you are allowed to use a mark to identify the source of goods, rather than your own goods.
If a trademark owner sues someone for using their mark without permission, the court will look at the use to determine if it is privileged nominative use. Courts will consider various factors when determining whether fair use applies. Fair can be difficult to predict, and different courts will apply it in different ways.
A parody is a humorous or satirical imitation of a trademark. It must be non-commercial in order to be protected under the First Amendment. A parody must use the trademark in a way that is not too commercial. Parodies are protected under the First Amendment.
A parody differs from trademark infringement because it is not intended to damage the reputation of the trademark owner. Parodies are often protected by fair use law.
What Damages or Remedies are Available for Trademark Infringement Claims?
There are two main types of damages that may be available to a plaintiff in a trademark infringement lawsuit: an injunction and attorneys fees. An injunction is a court order preventing the defendant from continuing to infringe on the plaintiff’s trademark. Attorneys fees may also be awarded to the prevailing party in a trademark infringement lawsuit.
Monetary damages are rarely awarded in trademark infringement cases but may be available if the plaintiff can prove that the defendant acted in bad faith. Treble damages may be awarded if the plaintiff can show that the defendant willfully infringed on their trademark rights.
Have You Been Accused of Trademark Infringement?
If you have been accused of trademark infringement, you should consult with a trademark infringement attorney immediately. An experienced trademark lawyer will be able to help you determine whether or not your use of the mark is protected by fair use, and if it is not, will be able to help you file a response with the court.
Lapin Law Firm Can Help With Any Type Of Trademark Infringement Lawsuit
Lapin Law Firm specializes in intellectual property law and handles trademarks. Our firm will take action if someone else is using your trademark without permission. We protect your business and yourself from infringement. A trademark attorney will make sure that you are using the best possible protection for your company’s trademark. We pride ourselves on being an affordable trademark lawyer that specializes in small businesses and startups.
What Is Trademark Infringement?
When another person uses a device in such a way as to deceive consumers into thinking that the goods or services are associated with, or sponsored by, your business, an infringement has occurred under trademark law. Only where the goods of the parties aren’t so similar that customers may be confused should multiple parties use the same mark. Common law trademarks can only protect marks in areas where the same or similar logos are not used. Because federally registered trademarks have a national scope, they are protected throughout the United States.
What Is Dilution Of Famous Marks?
Dilution of a famous mark is when the use of a mark by someone other than the owner of the mark weakens the distinctive quality of the mark.
How it works:
Dilution can happen through blurring or tarnishment. Blurring happens when a mark becomes less unique because it is used on products that are not related to each other. Tarnishment happens when a mark is used in an unwholesome way or in connection with inferior goods.
Some examples of dilution include using a well-known company name on knock-off products or using a celebrity’s name to sell products that are not endorsed by the celebrity.
What Is Failure to Police a Mark?
When a trademark owner fails to police their mark, it can lead to the mark becoming “genericized.” This happens when the public starts using the mark to refer to the product or service, rather than just the brand. For example, “Band-Aid” is now used as a generic term for adhesive bandages, even though it is a registered trademark of Johnson & Johnson.
If a trademark becomes genericized, the owner may lose their exclusive right to use it. This means that other companies could start using the mark without having to pay any licensing fees. In addition, genericization can damage the goodwill and reputation of a brand.
To avoid having your trademark become genericized, you need to police its use and make sure that people are using it correctly (i.e., as a brand name and not as a general term for the product or service). You can do this by sending cease-and-desist letters to companies or individuals who are misusing your mark, and by running ads or campaigns that educate people on how to correctly use your trademark.
What are the best ways to monitor for trademark infringement?
In order to protect against trademark infringement, you must find out if the site is infringing on your brand’s rights. There are three possible solutions for monitoring trademark infringement:
– Use a trademark search engine
– Get yourself a lawyer
– Use an anti-counterfeiting company
Why are trademark monitoring services important?
- Helps you to protect your brand and reputation: By monitoring for unauthorized use of your trademark, you can take action to stop others from using it in a way that could damage your brand or reputation.
- Helps you to detect infringement early: The sooner you detect trademark infringement, the easier it is to stop and the less damage it is likely to cause.
- Helps you to avoid costly legal disputes: If you do not take action against unauthorized use of your trademark, you may lose the right to do so in the future. This could lead to costly legal disputes which could have been avoided if the infringement had been stopped at an early stage.
- Helps you to maintain a strong trademark: A strong trademark is one that is used consistently and effectively protected from unauthorized use. Monitoring for unauthorized use of your trademark helps you to do this.
- Coca-Cola regularly monitors for unauthorized use of its trademarks around the world
- Nike has a team of lawyers who monitor online auction sites for listings selling counterfeit Nike products
- Apple uses automated tools to scan websites for infringing content such as counterfeit goods or pirated software
What Happens If Your Company Loses The Trademark?
An owner of an abandoned trademark loses their rights in the mark. If they have a registration, the registration is subject to cancellation. The consequences of a discontinued brand are as follows:
- The mark becomes available for anyone to use;
- The registration becomes subject to cancellation; and/or
- Any company infringing on the trademark may be permitted to continue to use it.
An abandoned trademark can be subject to cancellation through a Trademark Trials and Appeals Board (TTAB) proceeding where the adverse party will be required to prove abandonment and the trademark owner will be given an opportunity to show that the mark was not abandoned.
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