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“The company’s name, logo, tagline, and other marks are the heart and soul of the business identity. It sets your brand apart from the competition, becoming more recognizable as your reputation and business grows. Plus now it is your digital rights too,” says Mr. Shailesh Rajpal.
Discovering someone using your marks or elements that appear confusingly similar to them can be surprising and upsetting. Rather than directly contacting the entity or individual you believe to be infringing on your trademark, it is recommended to follow a more systematic protocol.
Is it Trademark Infringement? First, you need to determine whether your trademark rights are truly being violated from a legal standpoint. While common law does provide some rights for unregistered trademarks. Even for small businesses, there are many reasons to register trademarks, including national protection, incontestability, and the ability to use the ® symbol to prevent any argument of innocent infringement.
It’s important to understand that a mark or name does not necessarily need to be identical for confusion among consumers. Courts will consider the degree of similarity, whether the goods or services between the plaintiff and defendant are sufficiently related.
Hire a Trademark Attorney
If you believe you have a valid claim for trademark infringement, do not try to take the matter into your own hands. Contact a business law firm, with experienced trademark attorneys on staff. Despite initial perceptions, trademark infringement can be highly complex and requires knowledge of the process and prior precedent. Skilled attorneys will consult with you to determine whether you indeed have a viable claim for trademark infringement and your likelihood of success on the merits. Should you have a viable claim, trademark attorneys will protect your interests aggressively.
Cease-and-Desist Letter
Most people do not jump straight to filing a lawsuit for trademark infringement, primarily because the time and costs associated with litigation can be substantial. More often, a cease-and-desist letter is used as both a deterrent and a warning. The cease-and-desist letter demands that the infringer remove the trademark(s) immediately or be subject to a lawsuit. While the message must be explicit, the language should be worded carefully to encourage compliance and adhere to the facts and established law. Keep in mind the infringer may be unaware your trademark exists. When that is the case, a cease-and-desist letter is often effective in resolving the infringement.
Alternative Dispute Resolution (ADR)
If a cease-and-desist letter is ignored or contested, there still might be a less expensive and less labor-intensive means of protecting your trademark than filing a lawsuit. Alternative dispute resolution (ADR), such as arbitration or mediation, can effectively trademark disputes.
Trademark Lawsuit and Litigation
If mediation is not successful or not desired in a specific case, the final step is to file a trademark infringement lawsuit in federal or state court and proceed with litigation. Most trademark owners choose to file for federal infringement.
To Conclude Mr. Shailesh Rajpal said, “a trademark owner must prove the following in order to support a trademark infringement claim in court:
The trademark has been registered.
The defendant is using the trademark or a similar mark.
The defendant’s use causes confusion between the two companies.”
