Trademark Infringement is, at its most basic, the unauthorized use of a brand or service name. It is usually (but not always) connected to products or services and always results in confusion, deceit, or confusion regarding the company from which a product or service was purchased.
A trademark owner can file a lawsuit when he feels that his trademarks are being violated. If a plaintiff proves trademark infringement in a lawsuit, an order from the court could stop the person from using the trademark, and the trademark owner can receive monetary compensation.
How Does Trademark Infringement Occur?
If a business has registered a trademark successfully then it has an effective monopoly in the use of that brand for certain products, and the right to enforce its monopoly via a lawsuit. The company can initiate legal proceedings when a business knows another entity is violating its trademarks.
How to Detect Trademark Infringement:
Trademark infringement can occur in many different ways. However, the vast majority now occurs online – in particular, on the major online platforms, like Amazon, Alibaba, AliExpress, Walmart, Wish.com, DHGate, and others.
A few things to look out for:
- Online sellers using your marks for new items or “almost new” items with a large supply – you generally cannot sue for reselling older items.
- The price of those items is discounted by 20% or more of what a legitimate product would cost.
- Complaints about the quality of those goods.
Many other variables could be involved.
Penalties for Infringing a Trademark
The penalties for trademark infringement can differ depending on the particular case according to the individual facts of a particular trademark violation.
The most frequent punishment for trademark violation is an injunction requiring the violator to stop using trademarked materials.
It is also possible for civil or criminal sanctions to be triggered by the deliberate violation of trademark law, though this is rare.
Trademark owners who wish to protect their rights should always monitor their trademarks to ensure third-party companies do not use them improperly.
If the trademark owner is vigilant in protecting their intellectual property rights, the distinctiveness of their mark could be improved, and they can retain the exclusive rights to their trademark.
If a trademark owner is aware of a use that violates their trademark, they can respond by sending a cease-and-desist letter. These letters could be the initial step in reaching an agreement to stop the unapproved use of your trademark. This is often a superior way to resolve an issue as compared to litigation.
How Do You Determine Whether a Trademark Is Infringing?
There are eight elements that courts typically consider in determining if there is the possibility that two marks will be confused:
The similarities of the trademarks at issue: This is a matter of the appearance and pronunciation of the trademarks. The more similar the trademarks appear, the more likely they will confuse consumers.
The resemblance of the goods and services: Confusion is more likely if the products or services in question are close or identical.
The distinctiveness of the plaintiff’s trademark: Whether the plaintiff’s trademark is fanciful, arbitrary, suggestive, or even descriptive is a factor in this examination. The more robust the trademark, the more secure it is.
The evidence of actual confusion among customers: Evidence of actual confusion is the strongest proof for trademark infringement.
The defendant’s purpose or intent: If the defendant was aware of the trademark used by the plaintiff, this factual information could be considered a sign of infringement.
The target market or markets involved: When the two products are sold in tandem and to similar consumers, this can be considered a factor indicating a greater possibility of infringement.
How much care consumers exercise: If the product is inexpensive and the consumer does not take a lot of time to make the purchase, the weight of this fact will be towards infringement. On the contrary, if the consumer is careful and sophisticated, that will lead to a finding of non-infringement.
Possibility of expansion: When the products or services do not overlap but are within the normal zone of expansion of one another, there can still be a likelihood of infringement.
Frequently Ask Questions
Is It Possible to Accidentally Violate Copyright?
Copyright laws can be violated by using creative works like a logo, picture, image, or text without authorization. Every company should be aware of the proper ways to utilize copyrighted content. Even unintentionally breaking copyright laws can result in hefty fines and even jail time.
Is Trademark Infringement Illegal?
In a nutshell, trademark infringement can be a crime under certain circumstances. Trademark infringement refers to the unauthorized and unlawful use of a brand or service if it could result in confusion between the trademark and the one used in the future.
What Are the Dangers of Infringing Trademarks?
Even unintentional copyright infringement can be extremely expensive for small firms. Trade secrets, patents, trademarks, and copyrights are all examples of intellectual property. Thousands of dollars in fines as well as possible criminal charges and jail time might result from violations.
Conclusion
Suppose you’re engaged in an infringement case or litigation involving trademarks. We suggest you seek advice from a trademark attorney before contacting the opposing side. One reason is that the other side will take you more seriously. Regarding trademark infringement, we vigorously protect our client’s rights.
We are committed to your interests. For innovative solutions and cost-effective and effective representation of copyright, patent, and trademark infringement, contact us at Sherinian law or email us to set up an initial consultation with an attorney.