What is Trademark Infringement
A Complete Guide
Trademarks are on the agenda of the new competitor company for protecting the company name and company goods or services. Because there is always a new company each time and a new nascent company, trademark infringement is on the agenda of law as a matter of concern, though. Knowing what is trademark infringement, seems to be, and how business law takes cognizance of the same is an obligatory subject for businessmen, marketeers, and entrepreneurs. The article makes an earnest attempt to bring on board the procedure of trademark infringement, legal definition of the same, with real-time examples of infringement, and providing a template on how business enterprise can protect its trademark.
What is Trademark Infringement?
Trademark infringement is the state in which a person uses another’s identical or similar trademark as a registered trademark without permission. Trademarks are founded on intellectual property rights that are used to distinguish goods or services of a specific company from those of other individuals. Trademark infringement is where a party uses or imitates a mark which will make the consumers think that there is some kind of relationship between the infringing party’s product and the owner of the trademark’s product.
Types of Trademark Infringement
Trademark infringement can be multi-dimensional in nature depending on the nature of caused infringement. The broad broad categories are as follows:
1. Direct Infringement
Direct Infringement implies utilization of other people’s registered trademark for procuring and allied or similar services and goods. When an institution places “Nike Sportswear” as a title for their footwear, that shall be an infringement directly due to the reason that “Nike” is a registered title of sportswear and allied products.
2. Contributory Infringement
Contributory Infringement, and not where one is inducing or causing one’s trademark to be infringed but he himself isn’t using the infringing mark. This is where the individual or the company is causing or inducing the infringement, i.e., selling pirate goods or services which are infringing a marked register.
3. Vicarious Infringement
Vicarious infringement happens if a party is entitled to supervise another party and becomes careless with the intent not to let them enter into trademark infringement or refrain from being implicated in trademark infringement. A vicarious infringement defendant may be innocent of infringement but contributorily negligent for infringement or situations leading to infringement.
4. Dilution of Trademark
Dilution is the utilization of a distinctive character of a trademark by anyone but the owner of the trademark for the purpose of diluting the reputation of the trademark. Dilution takes place in two broad categories:
- Blurring: It is the utilization of a trademark in commerce that renders the distinctive or distinctive character of the trademark unclear in the marketplace.
- Tarnishment: It is the use of a mark for harming the reputation of the mark, i.e., by providing inferior products under the name of a superior quality mark.
Trademark Infringement Elements
Some of the essentials which are to be proven in trademark infringement are:
- Valid Mark Ownership: The person who owns a mark legally shall be the claimant, either in USPTO register or under common law.
- Chance of Confusion: The best evidence in trademark infringement cases is whether or not the use of the supposedly infringing mark will create confusion amongst the customers. The courts find out if the marks would be identical to each other that they would lead to confusion amongst the customers about the source, sponsorship, or connection of the services or goods.
- Use in Commerce: The mark per se shall be used in commerce, i.e., the good or the service shall be advertised for sale or sold or trafficked in some other manner with intent so as to affect foreign or interstate commerce.
- Likeness of Marks: Plaintiff marks and defendant marks are considered to be similar by courts on the basis of visual similarity, phonetic similarity, and conceptual similarity. If the marks are visually identical in shape to the point of causing confusion, there will be infringement.
- Overlap in Markets: Where the goods or services to which the trademarks are to be applied are similar or related, there will be likelihood of confusion and therefore infringement.
How to Protect Your Trademark
In case you have a trademark, make sure that you do not let your trademark be used fraudulently so that you can still make profits due to your intellectual property. Some of the methods by which you can safeguard yourself are as follows:
- Register Your Trademark
The first of the trademark protections is to register it with the corresponding government bureaus, e.g., U.S. Patent and Trademark Office (USPTO) or the corresponding bureau in your native country. A registered trademark has statutory protection, and it is easier to oppose infringement.
- Watch the Market
Ongoing monitoring of the market for potential trademark infringement. This shall involve search within trademark registries, web watch software, and monitoring of trade competitors. Timely detection will prevent future loss.
- Prosecute Infringers
If your trademark is infringed upon by a third party, your sole recourse is to chase it immediately and then move on to enforcing the law. This may be in the form of sending a cease and desist letter, action for infringement of the trademark, or even recourse to other alternative modes of redress for resolution of conflict such as arbitration or mediation.
- Guard vigilantly over your application of the Trademark
You will be held liable under an obligation as a prerequisite as a prerequisite to retaining your trademark to continue using the mark in commerce. Maybe, non-use of a trademark once after a long time will lead to abandonment of rights, especially in abandonment.
Examples of Trademark Infringement in Everyday Life
Attempting to infer the way the trademark infringement has been utilized day by day, here are some examples:
Example 1: Apple vs. Apple Corps
Apple Inc. v. Apple Corps, the longest and highest reported trademark infringement case, is a corporate conglomerate of The Beatles. Apple Corps had filed a case of trademark infringement against Apple Inc. for encroaching on its music service mark. Apple Inc. had won the case multiple times in court, and ultimately, they had acquired the trademark rights of Apple Corps in 2007 to use the Apple mark in the music business.
Example 2: Louis Vuitton and Copy Products
Louis Vuitton, being a fashion brand company, has pioneered the fight in the struggle against protection of trademark rights against copy products, and the most was keeping copy product at bay. The company sued the individuals selling copy Louis Vuitton goods on the website. Louis Vuitton won the case on the plea grounds that there was an information era in which there was a necessity for trademark rights.
Example 3: McDonald’s and “Mc” Prefix Infringement
There have been multiple cases of infringement of McDonald’s trademark by entities using the “Mc” prefix in recruitment. For example, the company successfully sued a tiny food enterprise “McCurry” recently in Singapore due to consumer confusion whenever the company made use of using the recruitment of the prefix “Mc” and due to the dilution of McDonald’s trademark.
Conclusion
Trademark infringement hurts a company’s brand name, customers, and market. Having knowledge of what is trademark infringement and how to guard your intellectual property will make a company have a phenomenal and legendary brand. Maintaining trademarks through trademark registration, market surveillance, and responding appropriately will protect businesses from money-gobbling suits.
FAQ:
1.) What is trademark infringement?
Trademark infringement is an application of a trademark by one party that is the same as or deceptively similar to the registered trademark of the other party with the intent of causing confusion between the two parties’ consumers.
2.) How can I ascertain that my trademark is being infringed?
You can monitor the market and employ trademark search facilities to sieve for possible infringement. Wherein the third party is using your mark and confusing the purchasers, that is an infringement.
3.) What if I see someone infringing on my trademark?
Issue cease-and-desist notice, sue, or other subsequent actions. You are asked to consult an intellectual property law lawyer.
4.) How is trademark infringement achieved?
In fact, mark filing, continuous use of the mark in commerce, and cautious avoidance of edging infringing uses in commerce are restraints on avoidance and prevention of trademark infringement.
5.) What is punishment of trademark infringement?
Punitive damages award for trademark infringement is monetary relief, relief in the nature of injunction, and forfeiture of offending goods. The court also grants discretionary statutory damages to the mark owner, which are onerous.