Trademark infringement occurs when a person or company uses a trademark (a brand name or logo) without permission from the owner of that trademark. Perpetuating trademark infringement, or being a victim of it, can seriously affect a business. It can also confuse consumers about the source of goods and services. If trademark infringement continues, this could lead to poor sales for the honest business owner and legal action from their intellectual property lawyer.
To prevent trademark infringement from occurring, it’s critical to learn everything you need to know about IP law as a business owner and how you may be committing infringement unintentionally. Equally important, it’s crucial to know your options for what to do when your idea is stolen. Moreover, this article will serve as a guide to help prevent you from committing trademark infringement unintentionally.
Steps To Prevent Trademark Infringement
Defending a trademark infringement lawsuit may be time-consuming and disruptive to a company. Businesses must be able to navigate the brand landscape with confidence and avoid prior registrations and other difficulties. Read the following steps for further assistance.
Do Some Research
Before trying to buy your trademark it’s essential to do some research. First, check if the mark or logo is already in use for similar goods or services. This will give you an idea of any existing copyrights or trademarks that may conflict with your vision. You can work to prevent infringement by choosing from a variety of registered U.S. trademarks for sale. This way, you know you are in the clear, and free to use it as you please.
You can use the trademark database to help you with your research. The United States Patent and Trademark Office provides a searchable internet database allowing searchers to determine whether a specific trademark exists in federal law.
Moreover, you can find out if your trademark falls under the fair use exemption. This is a provision of trademark law that allows you to use a mark without infringing upon its intellectual property for certain types of uses.
Common situations under the fair use act include:
- Using a business-location-related name (such as the name of a city) even if it is the same or similar to another person’s mark.
- Using descriptive terms (such as quality or geographic location) to define a product or business.
However, to avoid implying a relationship with the trademark owner or tarnishing the mark’s goodwill, it is critical to ensure that any usage of another mark does not disparage the original.
Seek Legal Counsel
If you’re unsure whether your trademark is an infringement, the best course of action is to seek legal counsel, especially if you’re a new business owner. An attorney can advise you on trademark law and help protect your business from liability for committing trademark infringement unintentionally.
Other areas in which legal counsel can help include:
- Gaining access to databases that include state trademark records and common law marks. This makes it easier for you to know if your mark infringes another’s copyright.
- Defending any charges brought against you.
- Saving you time and money by helping determine if it’s appropriate to cease activity or take advantage of any available defenses, which may include: prior use, consent of the defendant, as well as abandonment of the mark.
Similarly, if your competitor claims that they’re sustaining damage due to your usage, you’ll want to be prepared to defend yourself. In these circumstances, an attorney can help determine which party has a valid claim and may even suggest alternative solutions.
Register Your Trademark
Registering your trademark with the United States Patent and Trademark Office is one of many crucial tips for starting a business. In addition, it is the first step businesses take to prevent trademark infringement.
Trademarks help safeguard your company by preventing others from using your brand without authorization, which protects your intellectual property rights. Moreover, it’s critical to understand the difference between ® and ™ and why it matters for your goods or services.
If you fail to protect or register your trademark, you risk someone else using the same or similar mark on similar goods or services, which may weaken your mark’s power and dilute its distinctiveness. Registering your trademark also creates a legal presumption that you are the owner of the mark.
Keep a Paper Trail
It is crucial to keep a paper trail to prove when you first began using your trademark to reduce the likelihood of trademark infringement.
As a general rule, the earlier you start using your trademark, the better. You should record evidence such as:
- The date of first use;
- The location of the first use;
- Any sales and marketing campaigns launched locally or nationally;
- The similarity between your trademark and goods or services;
- The length of time you’ve used the trademark;
- Your mark’s geographic reach and percentage of sales made in your state (if you sell nationally).
Many times, people fail to document their first use, and they end up losing their trademark rights. By keeping a paper trail, you can avoid this situation.
Consequences of Trademark Infringement
Trademark infringement penalties may differ considerably, depending on the degree of infringement. However, according to UpCounsel, the most frequent penalty is an injunction or a cease and desist letter, which orders the offender to stop using the infringing material.
UpCounsel also notes that it’s possible for civil or criminal penalties to advance from an intentional violation of trademark law. However, this is a rare occurrence.
There are a variety of penalties for infringement, including:
- An injunction to restrict the illegal usage of the trademarked or copyrighted material.
- Prison time.
- Fines and attorney’s fees.
A trademark owner must monitor their mark to ensure that others aren’t misusing it. Finally, UpCounsel notes that if a trademark owner is neglectful about defending their intellectual property, the uniqueness of their mark may be compromised, and they may lose exclusive rights to it.
Trademark Infringement Examples
To better understand how trademark infringement works, consider real-world instances. Examples of trademark infringement include:
Apple Corps v. Apple Inc.
When the Beatles sued Steve Jobs, he agreed not to enter the music business and he paid a cash sum. After iTunes was released, Apple Corps filed another lawsuit against the company. When Jobs agreed to buy Apple Corps’ trademark rights and then sublet them back, the case was settled.
Jack Daniels and Patrick Wensink
After Patrick Wensink published a book with a cover that resembled the Jack Daniels trademark, distiller Jack Daniels sent him a cease and desist letter. However, instead of legal threats, the letter was pleasant and indicated the company’s willingness to reimburse any fees associated with changing the cover.
Ultimately, trademark infringement is a serious issue that can have a significant impact on your business. Having the right knowledge and understanding of preventing it before it happens is critical in protecting your brand from these damages.
