If you have registered your trademark or service mark with the United States Patent and Trademark Office, you may feel as though you are in the clear when it comes to potential infringement. Indeed, trademark infringement law is on your side if you hold the registration. However, that does not mean challenges will not come up that you may have to deal with. Here are some of the most common questions business owners have about trademark infringement.
Question: What if I Find a Business Using My Same Business Name?
If there is a likelihood that consumers will be confused between the two, there might be an infringement issue. But if you and the other company are in different geographical locations or offer completely different services, the likelihood of confusion is minimal and probably doesn’t warrant legal action.
Question: I Didn’t Register My Trademark, but I Have Used It for 40 Years. Am I Protected?
If a new business pops up in your area that uses a similar mark to the one you’ve established, you might have a case under the “common law” protection by use.
Question: Should I Register My Trademark in My State as Well as Federally?
State trademark laws vary, but in some cases you could get additional infringement protection if you do register at the state level.
Question: What if I Am Found to Have Infringed on Someone Else’s Trademark?
Businesses found to have infringed on a trademark usually have to change the company name immediately, surrender all profits earned using the infringing mark, and pay fees and damages.
Question: How Does “Likelihood of Confusion” Factor Into Infringement Cases?
The likelihood of confusion test is one of the main tools used in deciding infringement cases. It discerns whether customers would be likely to confuse one business’s logo and services for another’s based on similarities in the trademarks. In these matters, the judgement is based on whether the two businesses operate in the same area, sell closely related items, have similar price points, target the same types of customers or sell in the same types of stores. One company can claim that the alleged infringer is making money that consumers meant to spend on the accuser’s products but didn’t because they confused the trademarks.
Question: I Use a “TM” Symbol on My Logo. Am I Protected From Infringement?
Not necessarily. The “TM” symbol indicates you’ve established a trademark by use. It doesn’t denote a registered trademark with the United States Patent and Trademark Office. If a potential infringer starts operating in your area, you could argue protection by use if you’ve been in business longer. However, the “TM” symbol does not offer you the full protection of the USPTO because your trademark is not officially registered with the federal government.
Question: I Want to Sell My Products Internationally. How Can I Prevent Infringement by a Foreign Company?
If you want to sell in other countries, you will first need to register with the USPTO and the United States Customs Office. These registrations will help if you want to apply for a trademark in a different country. Each country has its own laws for trademarks; indeed, some don’t have any requirements at all, while others have stringent regulations.
Question: What if I Discover a Business Is Using My Company Name in Its Domain Name?
Websites and domain names may be trademarked. If they are registered with the USPTO, they will enjoy the same protections as a logo or service mark. However, if you are relying on “protection by use,” your allegations of infringement might be more difficult to defend.
Question: Why Are “Strong” Trademarks Easier to Protect From Infringement?
Strong trademarks are distinctive and unique, usually without indicating where the company operates or what it sells. Marks like these are not easy to “copy” without the infringement seeming obvious.
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.