As a creative small business owner, your intellectual property is your most valuable asset. This includes your trademarks, such as your names, taglines, slogans, logos, and signature offerings, which distinguish your brand from other brands in the marketplace.
Trademarks grant you an exclusive set of rights that help you protect the integrity of your brand and ensure that no one else reaps the fruits of all the labor you put into building your business. It also protects your consumers from buying products or services, they believe to be offered by you, but instead offered by a random third-party.
Establishing a recognizable and strong brand gives your business special superpowers, but losing its value can happen in an instant (or, slowly over time) if you don't know how to protect and enforce your trademark rights. That's why today we will explain what to do if your brand is being used without your permission and how to enforce your trademarks.
What is trademark infringement?
Trademark infringement happens when someone uses your brand's name, logo, or any other distinctive mark without your permission in a way that could cause a 'likelihood of confusion.'
It can take years to build a unique identity for your business—a recognizable brand based on your unique naming, logos, catchy slogans, or a specific product design. If another company started using something very similar, making customers think their products or services are yours, it could cause a lot of harm to your business. It could mislead your customers, leading to a loss of revenue and damage to your reputation if the imposter products or services are of lower quality.
Trademark infringement dilutes your brand's uniqueness and can lead to financial losses and damaged customer trust. Enforcing your trademark rights ensures that your brand remains unique and protects your profits and reputation.
How to protect your brand against trademark infringement
One of the first steps to protecting your brand against trademark infringement is registering your trademark with the United States Patent and Trademark Office (USPTO).
Registration grants your trademark teeth. In other words, it provides mechanisms to enforce your trademark and better coerce compliance among infringers. For starters, your registration is prima facie evidence that you are the owner of the trademark, and allows you to sue for trademark infringement in federal court. On top of that, it provides a record of when your trademark was first used in commerce to establish your priority of use before any infringers. That's why registering your trademark is an essential first step— but registration alone is not enough.
While the USPTO grants trademark rights, it does not police or enforce those rights. As a trademark owner, it is your responsibility to ensure that no one is using your brand identifiers without permission.
Here are some steps you can take to monitor your brand and make sure your rights aren't being violated:
Conduct regular trademark searches: If you discover that another business is attempting to register a trademark so similar to yours that it's likely to confuse customers, you can oppose the registration.
Monitor competitor marketing materials: Be aware of what slogans, logos, and marketing materials your competitors are using so you can catch any potential infringement.
Hire a trademark monitoring service. This is like having a bouncer for your intellectual property, ensuring no one trespasses on your rights. If you have someone whose sole job is monitoring your trademark, this frees you up to focus on the aspects of your business that only you can do.
How to enforce your rights if someone uses your brand without permission
If you find that someone is using your brand or a confusingly similar mark without your permission, it's imperative that you enforce your rights immediately by taking the following steps.
Document everything. Take screenshots, save copies of infringing materials, and keep a detailed record of how and when you discovered the infringement. Think of this as gathering evidence for a case. The more thorough your documentation, the stronger your position will be if legal action becomes necessary.
Send the infringer a cease and desist letter. You can do this yourself or hire an attorney to do this for you. This letter should clearly state your trademark rights, provide evidence of the infringement, and demand that the infringer stops using your trademark.
Enter negotiation and try to reach a settlement or licensing agreement. A cease and desist letter is often enough to get the infringer to stop. However, there are cases where negotiation or settlement might be necessary. Or in some cases, where it makes senses, you can strike a licensing deal with the infringer and have them pay you for use of your trademark. Either way, reaching an agreement avoids litigation while still protecting your rights whether its a licensing deal or settlement agreement.
File a lawsuit. If out-of-court negotiations are not fruitful, you will have to file a lawsuit to enforce your rights. It's best to have an experienced trademark attorney on your side who can advocate for your rights during this often long and complex process.
Remedies for trademark infringement
If you are victorious in a trademark infringement case, these are some of the most common remedies courts have to restore your rights.
The court will likely order the defendant to stop using the infringing mark—this is called an injunction.
A court can also order the destruction of all infringing items.
A judge might also order damages such as the cost of litigation, attorney's fees, and any profits the defendant made from illegally using the trademark.
Protecting and enforcing your intellectual property rights is one of the most important things you can do to protect your livelihood and the longevity of your brand.
We're here to help. Book a call with us if you have concerns about potential trademark infringement!
*Disclaimer: The above information is for general educational purposes only. Nothing in this blog article should be taken as legal advice. Reading this article does not form an attorney-client relationship with us. An attorney-client relationship is formed through a signed engagement agreement. If you would like further information, we would love to help you out! Feel free to reach out with any questions or schedule a free consultation with us through our booking calendar.
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