In a highly competitive marketplace, the buzz word these days is branding, and branding can be more valuable than the actual product you are selling. If you have worked hard to brand your company and establish a trademark that signifies your company’s reputation for quality and value, you must guard it zealously. Similarly, if you own a new company looking to make a splash, you don’t want to be constrained unnecessarily in your marketing efforts.
Trademark infringement occurs when a company uses a mark that is similar enough to a protected trademark that the new mark is likely to cause confusion among the consuming public. We represent clients on both sides of trademark infringement disputes — plaintiffs and defendants. Our attorneys have a thorough knowledge of state and federal laws and we know how to put together a compelling case to protect your right.
If you are engaged in a dispute over a registered or unregistered trademark, don’t hesitate to give us a call.
Plaintiffs in infringement cases must prove they have a valid trademark, must have been the first to actually use the mark in the sale of goods or services (seniority), and that the defendant’s competing mark is likely to cause confusion, dilution, and/or tarnishment. Plaintiffs in trademark infringement lawsuits can include claims of unfair competition, trademark dilution, unjust enrichment, false advertising, and/or damage to business reputation.
For plaintiffs in these cases, we can request a restraining order or injunction to prevent the accused from continuing use of the mark in dispute. This can be extremely disruptive to a business and its operations causing loss of money and reputation. Therefore, it is important anyone accused of trademark infringement seek immediate advice from a knowledgeable intellectual property attorney.
As a defendant, receiving a trademark cease and desist letter or even being served with a lawsuit can be unsettling. Recipients of infringement claims should quickly seek legal advice. In these cases, the plaintiff will claim prior trademark rights and demand you stop use of a mark for which the company believes it has exclusive rights. Our attorneys evaluate infringement notices and claims for validity and strength. We provide opinions on chances of successful defense as well as other options for dispute resolution. Additionally, we develop defense strategies that align with business goals and objectives while increasing clients’ chances of success.
Two major defenses to trademark infringement are fair use and parody. The fair use defense is viable when one company uses another’s descriptive trademark in good faith simply to describe a quality of its product and no consumer confusion results. Parody allows artistic and editorial use of a trademark if the use is not tied directly to commerce. A defendant can also argue that the plaintiff lost the right to a trademark due to abandonment, improper licensing or assignment, or because the mark has become generic.
If you are faced with either situation, or need to trademark your company, contact us at 706-210-8040.