Trademark Infringement
Quick Summary: You may find yourself accused of trademark infringement, or you may think that someone else is infringing your trademark. If someone is using your mark, you need to make them stop or you risk losing your mark. If you are infringing, you need to know how to not get sued. No matter which side of the coin you are on, it’s a good idea to talk to a trademark attorney to know what your rights and responsibilities are.
What is Trademark Infringement?
What is Trademark Infringement?
Trademark infringement occurs when an unauthorized party uses your exact trademark or a substantially similar mark on competing or related goods. The true test of infringement is whether the use causes a “likelihood of confusion” in the mind of the average consumer. Trademarks exist to inform consumers about the origin of the goods, so if a consumer thinks that a competitor’s goods might have come from you, this causes confusion and is an infringement. There are many factors that go into this “likelihood of confusion” calculus, so you really need to talk to an attorney if you are accused of infringement, or if you suspect that someone is infringing your mark.
What if Someone Is Infringing My Trademark?
What if Someone Is Infringing My Trademark?
If you become aware that someone is infringing your trademark, you need to take action to stop them. If you allow the infringement to continue, you risk losing your trademark rights. While a trademark owner is not required to seek out every conflicting use of his marks, a complete failure to enforce a trademark does weaken your trademark rights, and may lead to a loss of distinctiveness — and therefore a loss of your trademark rights.
If you discover that someone is using your mark, contact a trademark attorney and have them investigate the possible infringement, and see who has priority (first use) of the mark. An attorney will also look at the likelihood of confusion factors (there are many) before deciding to send a cease and desist letter. But don’t let it go; if you don’t act, you may lose your trademark rights and certain remedies that you would otherwise be entitled to.
What Happens if I Ignore A Trademark Infringer?
What Happens if I Ignore A Trademark Infringer?
If you choose to take no action against an infringer, you can lose your trademark rights. A court may decide that your infringer now has an implied license to use your mark, because you took no action against a known infringer for an extended period of time.
What if I’m Accused of Trademark Infringement?
What if I’m Accused of Trademark Infringement?
If you get a “cease and desist” letter from another company, you need to seek legal help immediately. The accuser may be over-asserting their trademark rights, or they could be absolutely right about your infringement, but you won’t’ know until you get some advice.
If you blithely ignore the issue, hoping it will go away on its own, you may be served with a lawsuit in Federal court for your infringement. The injured party may even be entitled to to extra damages for your “willful” infringement of the other party’s trademark. If you are served with a lawsuit, be sure to seek legal counsel right away; you have a limited time to respond to the lawsuit, and if you miss the deadline, a default judgment may be entered against you, resulting in damages that you now have to pay.
What happens if I Ignore An Accusation of Trademark Infringement?
What Happens if I Ignore An Accusation of Trademark Infringement?
If you ignore a letter asking you to cease and desist, you are flirting with disaster. Did an attorney send you the letter? Well, then, while it is possible that the complaint will go away on its own, remember that the complaining party actually paid an attorney to write the letter, so the chances of it ending with a nasty letter are pretty slim. The plaintiff may sue you in federal court, and then you have less chance of negotiating a settlement with them, because now they have gone to the trouble and expense of filing a lawsuit.
Also, if you ignore the cease and desist letter, and continue your (alleged) infringement, your refusal to respond and the continuance of your naughty activities may be seen as “willful.” See below for the penalties for being “willful.” Hint: It’s not pretty, and it’s expensive. It’s better to get a lawyer, have them talk to the other side, and work it out. You may be able to just stop without having to pay the other side any damages, which is a lot less expensive than getting sued.
What Are the Penalties for Trademark Infringement?
What Are the Penalties for Trademark Infringement?
If a trademark owner can prove infringement, they have a number of remedies, including:
- An order from a court (called an injunction) requiring you to stop using the mark
- An order to destroy any inventory that you have that bears the infringing trademark
- Money damages, including whatever profit the defendant made from their infringing activities; actual damages suffered by the plaintiff; and treble damages for “willful infringement”
- An order to pay the plaintiff’s attorneys’ fees
Once a lawsuit for trademark infringement has been filed against you, you either have to hire an attorney to respond — which is really expensive — or you have to default, in which case the plaintiff gets the damages that they asked for — which is likely to be even more expensive. Trust me, though: The plaintiff, once they have hired an attorney, is NOT going away quietly, so you need to get some legal advice right away.
Bottom Line: The stakes can be high when you are accused of infringement. If you get a letter from an attorney accusing you of infringement, you need to get some advice right away before a trademark infringement lawsuit is filed against you. If you need to stop an infringement, then you have to act. If you sit on your rights and do nothing, you risk losing your trademark.
If you get a cease and desist letter, or you need to force an infringer to stop, contact trademark infringement attorney Angela Langlotz right away to get the best advice on how to handle a case of trademark infringement.
If you have received a cease and desist letter, or you want to stop an infringer, don't wait until it gets worse.
Learn more about trademarks: