Have you registered your trademark? Is your brand protected? Trademarks are a delicate subject to tackle, especially when it comes to who owns the rights and how to take action when another entity infringes upon your trademark rights. Perhaps you have already come across another business entity or individual who has been utilizing a trademark similar to yours. They may not know about your brand or it’s possible they don’t see how their trademark resembles yours. Either way, the sooner you confront them about the trademark, the less of a problem it will become later so you can save yourself and the other brand time and money.
If you notice another brand using your trademark — or anything remotely similar — it’s time to notify them and come to an agreement or understanding about the rights to the trademark, especially if you have it registered and can prove it with documentation.
Monitoring Your Trademarks
Monitoring a trademark doesn’t have to be a hassle. Though it sounds like a rather painless process, monitoring a trademark isn’t always the top priority for many companies — but it should be.
Watch reports, which can be pages upon pages, are important because they indicate potential infringers. With over 90% of watch reports being deemed “junk,” companies ought to closely monitor each trademark. Some may be more important than others.
More often than not, those that are believed to be less important than others are often ignored and filed away — until the trademark is, unexpectedly, compromised by another company or individual. When a trademark is compromised, it may be easier to resolve the issue by sending the brand owner a cease and desist notice for trademark infringement. A cease and desist notice will not only benefit your own business but also be of service to the other brand. It’s best to resolve a compromised trademark as soon as possible; for, over time, the other brand owner will have spent more money and taken more time to invest in the trademark which will make them hesitant to rebrand.
If the brand owner fails to accept the cease and desist notice, then the case of trademark infringement may enter into litigation. This is where monitoring trademarks becomes even more important. When you can prove to a judge the actionable steps you have taken to monitor each of your trademarks, then your position will be more favorable to the judge in court. On the other hand, if your company fails to monitor trademarks and there is little to no evidence of any trademark monitoring, then the judge may look upon your case unfavorably.
Ultimately, it’s best to routinely monitor every single trademark in case the issue of trademark infringement takes you to court. When you document your trademark monitoring strategy, you create a strong, thorough defense for when you stand in front of a judge, and oftentimes avoid getting to court to begin with.
Enforcing Your Trademarks
In the case that another brand owner adopts and presents a seemingly similar logo to yours’ — and you have taken certain actions to resolve the issue on its own without much luck — you may want to take necessary legal action by bringing forth a lawsuit against the other brand.
Through your lawsuit, you can enforce your trademark rights. The process for enforcing your trademark will be easy in court if you can prove the jury the following three facts:
1) You own the trademark and it’s valid
2) You have priority of the rights to your trademark
3) The defendant’s trademark will confuse consumers because it misleads them about where the source or sponsorship of the goods or services originates
To enforce your trademark, be sure to register it federally. When you own a federal trademark, you automatically provide a legal presumption of the first two facts listed above. In other words, a federal trademark registration will give you the necessary paperwork that acts as proof you are the principal owner of that specific trademark. This gives you exclusive rights as the owner and discredits the defendant’s infringement of the trademark. Though a trademark doesn’t necessarily need to be registered, federal registration will yield many advantages in the long run.
If you win your litigation case in court, there are a number of solutions to take as your next step. The court, first and foremost, may decide that the defendant compensates you for damages as a result of the illegal use of a trademark. The defendant may pay you for the cost of litigation, attorney’s fee, and any profits that came about as a result of the trademark infringement. Additionally, a court can also order an injunction, where the other brand owner must stop utilizing the trademark indefinitely. Lastly, the court can rule that the defendant destroys all items that infringe on your trademark. There are other remedies the court may provide upon your successful juncture in court, but these three are the most common.
Get you ahead of your competitors by keeping tabs on your trademarks. Determine a strategy for observing your competitors and analyzing any similar trademarks that pop up; specifically, defend your brand identity, protect your business, and keep the trust with your customers by observing all trademark infringements and brand confusion.
Need help monitoring and enforcing your trademark?
DiAngelo Law specializes in trademark law, and we’d be happy to help you register, monitor, and protect yours. Reach out today to schedule a consultation or learn more about the team here.