Trademarks are valuable to businesses and their profitability. These marks differentiate your business from your competitors and help customers identify you from a sea of other companies. But in the age of the internet, trademarks are at a higher risk of being misused. The good news is that the Lanham Act, the federal statute that governs law around trademarks, has provisions that empower you to report and bring such misuse to court and hold the party at fault accountable. The best way to go about the procedure is to hire a trademark infringement attorney who is aware of the intricacies of the legal processes and can guide you through them. To help you get a grasp of the subject, we have compiled the basics of the laws and processes around trademark infringement.
The definition of trademark infringement is the unauthorized use of a logo, phrase, or name for a product or service in a way that is likely to cause confusion about the source of the product in the consumers’ minds. When you register a trademark, it gives you exclusive rights to use the mark, logo, or phrase for commercial purposes. The same registration also gives you the right to sue any individual or organization who uses the trademark without your consent. For making a strong claim and demanding action against the infringer, you need to fulfill certain legal parameters. Checking these parameters will help you proving your claim and getting the legal authorities to take the strongest of coercive actions against the infringer.
The basic legal requirements that you need to fulfill to pursue a trademark infringement lawsuit are as follows:
Let’s discuss and understand the three elements that form the basis of a trademark infringement lawsuit in detail:
The first and the most basic element that is of utmost importance is to prove that the trademark was used. Several activities can cause confusion among consumers or can be labeled as a commercial activity. But without proof that the trademark or a similar-looking mark was used, these activities to not violate the Lanham Act and cannot be termed as trademark infringement. This element serves as a restricting factor that prevents trademark holders from monopolizing generalized terms and language. Therefore, if you find your competitor using your technique to promote their products without using your mark, it cannot be termed as trademark infringement.
Proving the trademark was used for commercial purposes is a statutory requirement that needs to be met when pursuing a trademark infringement claim. The statutory requirement is included under the Lanham Act and is derived out of the congressional power of regulating interstate commerce. To meet this requirement, you must provide evidence that can prove that the alleged infringement activities have a significant impact on your interstate commerce. The interstate commerce activities that classify as infringing are:
This element carries the most weightage in a trademark infringement claim and decides the direction in which the decision will swing. A likelihood of confusion is established when you prove that the consumers are likely to associate the product or service using the infringed mark with a different brand/source. The court uses two different standards for determining the likelihood of confusion depending upon whether the infringed items directly compete or have no direct competition with the trademarked product or service.
However, some cases can be more complex than the two aforementioned standards. It is possible that the products and services in question are related but do not directly compete for profits and business. In such cases, determining the likelihood of confusion and its impact on business becomes complex. For such situations, the court uses a standardized test known as the Lapp Test which uses a non-exhaustive list of factors to help the justice system determine the likelihood of confusion in such cases. Some common factors that are most commonly used are:
Now that you have an idea of how strong your trademark infringement claim is, let’s discuss the legal remedies that you can demand. There are numerous legal remedies that you can demand from the infringer but some of the most common and effective ones are:
The Lanham Act lays down five types of monetary compensation that you can demand:
You can request the court to prohibit the infringer from selling products or advertising services using the trademark. The court-ordered injunction can order the infringer to cease all activities instantly or cease sales after the end of a reasonable sell-off period. The nature of the injunction can vary based on your case and the outcome of your hearing.
You can demand the court to order the destruction or forfeiture of infringed goods in circulation. In such cases, the court gives the infringer a particular time frame to destroy or forfeit the infringed goods.
As you may have already realized, taking on the responsibility of making a trademark infringement claim in your own hands is not a good idea. Hiring a trademark attorney is the best way to recover the damages that you incur. Here is how a trademark infringement attorney will help you:
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