When you’ve worked hard to develop a brand—from powerful, persuasive content to proprietary systems—it can hurt when someone else takes the credit or enjoys the benefits.
That’s essentially what happens with brand infringement.
And in our connected world, when “borrowing” ideas and phrases is as easy as doing a Google search, brand and trademark infringement is rampant.
How do you know when infringement is real? What can you do about it? Can you protect yourself in advance? We’ll tackle all these questions in this article.
Before we jump in, though, you must understand that trademark laws are complicated. Every country has its own way of observing trademark law. To protect your business, you should always consult a professional trademark attorney before taking any actions.
Not only that, be aware that brand infringement applies to every business, whether you’re a big brand or a solopreneur. If you have a unique way of talking about your services or products, or if you have branded systems, processes, or solutions, you have intangible assets worth protecting.
With that said, there are some steps you can take to ensure you are protected. So, without further ado, let’s dive in.
Identifying Trademark Infringement
What exactly is trademark infringement? It’s not always as clear-cut as you might think.
Trademark infringement occurs only when consumers get confused by the similar use of your trademark. For example, Delta Airlines and Delta faucets have no infringement issues, as you won’t mistake a bathroom element with the airplane ticket.
If someone wants to use your trademark, the first question you need to ask is, how likely is it for your customers to be confused by it? If the distinction is clear, there is no infringement.
Another thing you need to think about is the location. If you’re running a PC repair shop in Sydney, and someone opens a PC repair shop in Perth with the similar name, this might not be direct infringement. With so much distance between the businesses, it’s unlikely your customers can get confused by the name of the local brand. However, if you run a national chain and your business is well-known across the country, you might have the basis for a trademark infringement lawsuit.
When it comes to trademark law, trademark infringement can happen even if the names of businesses aren’t identical. Courts all over the world usually consider the overall sight, sound, and meaning are important when it comes to trademark infringement. That’s why simply adding a letter to a famous brand name won’t help you.
If you’re wondering why, just imagine someone opening a worldwide fast food chain called “McDowell’s.” Even though the name sounds different, it’s still based on a similar premise, and therefore, it is a trademark infringement.
To claim trademark infringement, you must first prove to the court that:
- You have a valid trademark registration
- A third party is infringing on that registered trademark
- The third party doesn’t have any type of consent to use the trademark
Again, the smartest thing you can do in these situations is to contact a trademark attorney and go through everything with a professional.
Dealing With Trademark Infringement
Never pursue trademark infringement unless you’re absolutely certain it exists. In some countries, filing a trademark infringement without legal basis makes your business liable and you might get countersued.
If the infringement claim is legitimate, however, there are some steps to follow.
First, ensure your trademark is valid and registered.
Second, craft a cease and desist letter, known also as a Letter of Claim, or a Letter Before Action.
This letter aims to start the communication between your company and the infringer. Its goal is to open a dialogue so you can settle without any need for legal action. The letter notifies the infringer about the legal rights to the infringed trademark and is usually sent with a legally binding promise that explains the obligations of the third-party when it comes to infringement.
Remedies for Brand Infringement
If the offender doesn’t comply with the requirements in your cease and desist letter, you will likely have to go to court. It’s then up to the court to decide whether there was any infringement, how it affected your company, and what the best solution is.
There is no golden rule in trademark cases. A lot of those cases end up with some kind of settlement, but sometimes there are other legal remedies available. For example, you might force the infringer to publicly admit to what has been done. (Quite a lot of big brands are doing this in order to create public awareness about the dangers of infringement.)
Protecting Yourself in Advance
Your brand is one of your most valuable assets. Whether it’s well established or you want to build a new one, you should take steps to protect it.
The idea is to take care of your brand before trademark infringement ever happens. Otherwise, you won’t be able to enforce your rights.
First, register your trademarks early, and enforce them consistently. Periodically search for usage, and let people know when they’ve used your trademarks inappropriately. (Sometimes, it’s as simple as giving you credit for the trademarked term or including the ™ mark.)
Second, make sure your employees have all signed a non-disclosure agreement (NDA) to avoid potential damage from a dissatisfied ex-employee.
Wrapping It Up
The trademark landscape changes rapidly, and you must stay on top of new developments. But it’s definitely worth the effort.
Think about the time you put into marketing and growth. Now imagine all of your hard work being usurped by another brand…
All because you failed to protect your brand’s processes, solutions, and product names.
If you’re serious about growth, you need to register your trademarks early. You need to do a lot of research, and you need to monitor how your brand evolves and how it’s affected by changing business landscape.
Trademark infringement is real, so be prepared. If you’re suspicious that someone is using your registered trademark, do something right away.
Only by protecting your brand you can help it grow.
About the Author: David Koller is a freelance passionate blogger, copywriter and occasionally business consultant for Actuate IP, the best trademark attorneys Melbourne has to offer.