Every entrepreneur works hard to brainstorm and chart a name and a logo to establish their brand value. It takes hundreds of hours and thousands of dollars to develop a mark and get it trademarked. Securing the trademark protects the brand and provides with the tools to prevent someone using similar signs and riding off the back of the business with many enticing perks like unique identity, a creation of goodwill, popularizing the brand, global recognition, etc. It is always suggested to make a trademark registration at the earliest to enjoy the afore listed benefits and avoid the condition of trademark infringement.
What is Trademark Infringement?
When a registered trademark is used by a person who is not entitled to use such a trademark legally, it constitutes infringement. A registered trademark is infringed, if the mark is identical and is used in respect of similar goods/services, if the mark is deceptively similar to the registered trademark and there is a similarity of the goods/services covered by the registered trademark, if the trademark is identical and is used in relation to identical goods/services and that such use is likely to cause confusion on the part of the public or is likely to be taken or have an association with the registered trademark.
So now the question arises as to how do we prevent other companies from trademark infringement?
How to prevent Trademark Infringement?
Well, this can be a little tricky. Trademark laws can confuse even the experienced entrepreneurs.
An infringement action is available to the registered owner to enforce exclusive right over the trademark with respect to the goods and services the mark is registered.
Here are a few steps to try and make the process of Trademark Protection against infringement a little less tedious.
Step 1: Determine if there is actually Trademark Infringement
First things first, i.e. to establish if a trademark infringement has occurred. Before plunging into a lawsuit it is very important to review a few trademark facts.
Trademark infringement occurs when the consumer will be puzzled by the dual use of the trademark and whether the mark is being used on competing goods/services. In order to prove trademark infringement, the owner must be able to prove that the infringing trademark is being used on the similar goods or services for which his trademark is registered. Another amusing point of the trademark law includes the names that aren’t identical but still infringe another name. Meaning, sight, and sound are also important factors in deciding if the two marks are similar.
The next factor to consider is location. If another person uses something similar to the trademarked name where the mark is registered then also it a case of infringement. If the business becomes famous across the country then the owner may have a greater chance of claiming infringement regardless of location. Similarly, as the e-commerce is shrinking geographic barriers so the courts may consider that someone’s online presence is impacting another’s business.
Step 2: Send a Cease-and-Desist Letter
If the owner of the registered trademark establishes that the other name is a) being used on competing goods and services b) customers would possibly be confused between the two names or c) the other name is being used in the same geographical region, then he should take an action.
Filing a lawsuit is typically not ain’t the most sensible first step. The lawsuit is not only an expensive deal but also lengthy and tedious proceedings that will consume a huge amount of time and money.
The optimal first step should rather be sending a “cease-and-desist letter“. This is fundamentally a demand letter addressed to the trademark infringer, summarily and clearly explaining the infringement.
It is very much possible that the infringer simply didn’t know about the pre-existing trademark. Alongside its also quite possible that the infringer already knew about it and was trying to ride off the existing goodwill with the customers. No matter whatever the case is the letter would clearly demonstrate that the infringer ought to stop using the mark within a certain span of time, typically 5 business days.
If the letter is ignored then it can be used as an evidence in a lawsuit that the owner at least tried to negotiate with the infringer in good faith before leaping into prosecution.
Step 3: Begining with Legal Procedures
This is where the things start getting messier. Legal proceedings take a very long time to resolve but if the cease and desist order hasn’t solved anything then there is no option left. These proceedings could last for years particularly if its a compact case.
The owner can expect the following out of a lawsuit filed against the infringer :
- Force the corporation to infringe the registered trademark.
- Claim back the business and become the sole owner of the trademark again.
- Potentially get back the legal costs from the other party.
Precaution is better than cure. The same applies to trademark registration. Unfortunately, a lot of business owners disregard the relevance of trademark protection until its extremely late. The foremost important step in protecting a trademark is by actually registering it as soon as possible. Otherwise, someone else will. A registered trademark owner is always at a much stronger legal position to stop someone else to infringe upon his mark. It should not be forgotten that a trademark is a valuable business asset, and the owner must be proactive enough as to protect it. Login to TrademarkCart for a hassle free and a smooth trademark registration process.