Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.
A patent protects an invention. A copyright protects a creative work. What, exactly, does a trademark protect? Intellectual property encourages inventors and authors to share their creative work. It gives creators control over their works for a limited time. In the same way, trademark encourages businesses to invest in their brand by preventing others from using it.
Trademark infringement cases hinge upon the owner of the trademark showing an infringer’s use of the mark causes confusion as the source of goods. Trademark protection gives the business the right to stop others from using the same mark but only when the alleged trademark infringement causes likely confusion about the source of goods.
Trademark infringement cases are expensive because the owner of the trademark must prove that the alleged infringers confuse customers. To get infringement damages, the owner must use data, experts, and research to show confusion is leading to a loss of revenue or the brand’s goodwill.
Revenue is easy to understand but what is goodwill? That legal term refers to how people associate the brand in the marketplace. Imagine cheap knock-offs flooding the marketplace that illegally use a famous fashion designer’s logo; those knock-offs could lead customers to think the brand has declined in quality, even if that isn’t the case at all. This is a loss of goodwill.
What will happen if someone uses me for trademark infringement
Depending on the situation, a trademark owner who thinks their mark is being stolen can file a civil action (a lawsuit) in either state court or federal court for trademark theft. Most of the time, though, trademark owners choose to sue in federal court for trademark infringement. Even if the plaintiff chooses state court, the defendant may be able to “remove” the case to federal court.
If the trademark owner can prove infringement, the following options may be open to them:
A court order (injunction) that the defendant stop using the accused mark; an order requiring the destruction or forfeiture of infringing items; monetary relief, including the defendant’s profits, any damages the plaintiff suffered, and the costs of the action; and, in some cases, an order that the defendant pay the plaintiffs’ attorneys’ fees.
No, not always. Since trademark infringement laws are meant to keep customers from getting confused, it may not be a problem if the same or a similar company name is used in two different businesses or locations that have nothing to do with each other. Customers may not be confused about where the goods and/or services came from.
Like a copyright, trademark protection doesn’t require any formal acts — it can be established by legitimately using the mark in a business or commercial setting.
No, Trademarks have to be registered in individual countries, depending on the legislation.