A trademark is a design, symbol, mark, word or phrase that serves as a marking or an identifying symbol for a product or a service. Getting a trademark for a commodity grants exclusive rights to the trademark owner and legally prevents any other person, business, or organization from using it in their name. Trademarks are a very important and impactful asset that helps customers to distinguish and remember their favorite brands or commodities. For example, Nike has its own logo, similarly, Mc Donald’s has its own symbol, through which their fans can easily recognize the brands and the names, they trust in the market.
Trademark infringement means the unauthorized use of a trademark which is marked in the name of some other person, business, commodity, or organization. Trademark can be registered or non-registered legally, but to actually take it as a personal authority in a public domain, it must be legally registered. If any trademark owner wants to claim a trademark infringement case on some other authority, then the trademark has to be made registered first. Without legal registration, one cannot owe the trademark; no matter he/she shall be using it even for years. Trademark violations can demolish a brand’s value or image in front of its customers. An actual owner of any registered trademark can take strict legal action against the infringement by filing a case against the person infringing its trademark. Taking action does not only mean verbal action, but it actually means taking action both in terms of verbal and written format. This includes sending warning letters to the infringer, asking for money as penalty, etc.
Consequences of Trademark Infringement
Trademark infringement can cause the following serious damages to the infringer:
- Sanctioning of cease and desist letter: The actual or lawful owner of the trademark can file a case of trademark infringement against the infringer. Filing a case against infringement will send an official ‘cease and desist’ letter to the infringer. This letter is basically a negotiating agreement that asks the infringer to stop using the same trademark or to change its trademark before asking to pay strict penalties. This might result in a positive response from the infringer, if he/she agrees to stop using the same trademark for future usage or agrees to change its logo, etc. Or there can be a possibility that the infringer simply ignores this notice letter and continues to use the same trademark. In that case, the lawful owner proceeds to take legal actions, further to the next level.
- Sanctioning injunction: The lawful owners whose trademarks are signed under the USPTO guidelines can ask for injunction letter against the infringer. Injunction is simply a court order sanctioned against the infringer to warn and ask him/her to stop its usage. This even includes asking to destroy and seize any goods or products that have the same trademark immediately. The infringer has the choice to either stop its usage or continue with the same trademark and face further legal consequences.
- Order to pay back the monetary damages: An infringer may be further asked to pay back all the monetary damages that have caused to the original brand from trademark’s illegal usage. This includes paying back all the penalties, such as loss in sales due to illegal infringement and usage, the future advertising costs that has to be made by the lawful owner to again enhance its sales, etc. The penalties may differ depending upon whether the infringement made is intentional or unintentional. If the infringer is found responsible to use the trademark knowingly, then he may be asked to pay even three times the guilty amount.
- Order to pay attorney’s fees: Sometimes if the violation lawsuit fails to settle the infringement, the court may order the infringer to pay the lawful owner attorney’s fees as a penalty. This may incur the infringer to pay a lot of money since the trademark field is too costly and the attorney can demand for any amount he/she wants to fight the same case.
- Damage to your own business: Once an infringement is found, the infringer is no longer being recognized with the same reputed name by its customers, who got attracted by the mere means of trademark. His/her whole sales will demolish and he/she will have to establish and start with a new name or may be with a different trademark, after paying a lot of money to the actual lawful owner.
How to avoid trademark infringement?
After going through all the consequences which may be caused through trademark infringement, anyone would want to avoid it as far as possible. One successful way to look around before actually deploying and relying on a specific trademark is to perform an extensive trademark search. This simply means to look around and check, whether the chosen symbol is already in use by some other company, business, or an individual.
If not, then the trademark can be registered and filed in your name, but if the search shows that similar or same trademark is already in use and it is a registered one, then a new trademark or a symbol has to be established. One is asked or suggested to perform this search before the filing or registration for a particular trademark. It is not a compulsion to hire any experienced professional to perform this search, but after going through all the complexities of the search and legal perspectives associated with the risks and profit making, it is advised to hire one.
Our team, at the TTSC offers exclusive and descriptive guide over which trademark search service will be appropriate, on the basis of size of the firm and client’s requirements. We have a skilled and knowledgeable team of young professionals who can provide the best in time services.