What to do when someone infringes your trademark

23 03 2016

Imagine discovering someone else using your trademark. The trademark, that you have spent hundreds of hours and thousands of dollars developing. What would you do?

Establish if there is a trademark infringement

First things first, establish if an infringement of your trademark has occurred. In order to do this, you must be able to show the infringing trademark is being used on the same or similar goods or services for which your trademark is registered. This also includes where the infringing trademark is fairly similar to your trademark and will cause confusion about the product’s origins. For example, Admiral fish and Admiral clothing are both registered marks however, it is unlikely that consumers of fish would confuse Admiral fish or its products with Admiral clothing and vice versa

Another interesting point of trademark law involves names that are not identical but can still infringe another name. Sight, sound and meaning are important factors in deciding if two marks are similar. You’ll find naming your supermarket ‘Costcow’ isn’t enough to distinguish it from ‘Costco’. Just as pluralising or adding descriptive words to the end of the trademark isn’t distinguishing enough.

Enforce your rights

If you suspect your trademark is being infringed, then you should consider taking action. But first, always seek professional advice from an experienced trademark lawyer or trademark attorney. In most cases, they will usually advise sending a cease and desist letter to the infringing business. If this doesn’t bring about the desired outcome, the next step would be to commence legal proceedings. The ultimate objective with legal proceedings is to prevent further unauthorized use of the trademark by the infringer. Not only that, but you may also seek compensation in the form of damages or an account of profits.

Register your trademark as soon as possible

Unfortunately many business owners disregard the importance of trademark protection until it is too late. The most important step in protecting your trademark, is actually registering it in the first place and as soon as possible. If you don’t register your trademark your competitors can. You are in a much stronger legal position to stop others from infringing your brand if you have a registered trademark. Remember, your trademark is a valuable business asset, be proactive and protect it.

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