Has Someone Infringed on Your Trademark?
Has someone else started using your trademarked name or brand? If so, an Orlando trademark infringement attorney will tell you that they’re stealing away the brand loyalty and customer base that you have worked hard to build. They’re also taking money out of your pocket.
Your trademark or brand may be protected even if you did not formally register your trademark with the U.S Patent and Trademark office. If you started using the trademark in commerce, you will typically have common law trademark protection from the date of first use, but it’s best to federally trademark your brand before you start using it.
What is Trademark Infringement?
A trademark or “mark” refers to any words, symbol or phrase that is used to identify a particular seller’s goods and to distinguish them from competing goods. If a person or business owns the mark, their trademark infringement lawyer in Orlando can sue other persons or businesses that use or attempt to use the protected mark, or something very similar to the protected mark. The applicable legal standard is “likelihood of confusion,” meaning is the use of the other mark in commerce likely to confuse consumers about whose product it is. A straight re-use of another company’s brand name in the same business area would very likely cause consumer confusion. (Think starting your own internet search company called: Google.) On the other hand, using the name Google to start a bed and breakfast in Aruba probably would not cause consumer confusion.
The harder cases are those in between, in which consumer confusion is at issue.
Courts look at various factors to determine the likelihood of consumer confusion including:
- How strong the trademark is;
- How similar the goods/products are;
- How similar are the trademarks;
- Is there evidence of actual consumer confusion;
- How similar are the marketing channels used;
- Would a typical purchaser exercise caution; and
- The defendant’s intent;
A prevailing trademark infringement lawyer can win temporary and permanent injunctions as well as money damages to recover for the losses incurred by the trademark owner, and potentially recover the attorney’s fees incurred as well.
Trademark dilution is a different cause of action from trademark infringement. In this action, a trademark infringement lawyer can sue under a theory of trademark dilution due to the actions of others that cast famous brands into a bad light or weaken the brand. Under federal law, only marks that are “famous” can pursue an action for trademark dilution. To find out whether a mark is “famous” the court will look at:
- How “distinctive” is the trademark;
- How long and how heavily was the trademark used;
- How was the trademark used in marketing and publicity;
- What is the geographic area applicable;
- How is the trademark used in commerce,
- Does the trademark have a high degree of recognition in the trade;
- Does anyone else use a similar trademark? And
- Is the trademark is registered with the U.S. Patent & Trademark Office.
If the plaintiff’s trademark infringement attorney successfully shows the trademark is famous, they can then sue the other party under two basic theories, “blurring” or “tarnishment.”
A theory of blurring requires a showing that use of a similar mark by a third party is blurring or weakening the bond between the original trademark owner and its customers by creating a different experience with different goods. For example, a blurring claim could be brought by Apple’s trademark attorney against an electric scooter and bicycle company called Apple, particularly if the scooters are constantly left lying around busy downtown business districts where Apple stores and offices are located.
Tarnishment occurs when a third party uses the same or similar mark in such a way that it brings disrepute to the original trademark owner. A famous case in which the Court upheld a successful tarnishment claim was Toys “R” Us v Akkaoui, (N.D. Cal. Oct. 29, 1996). Toys R Us sued an adult website called adultsrus.com, which sold pornographic materials. The Court upheld the claim as the website was likely to cast the famous mark of Toys R Us in a bad light, given that its market was famous for children’s toys and families with children.
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Trademark Infringement Plaintiffs
Our trademark infringement attorneys help clients who want to protect their hard-won intellectual property rights by enforcing trademarks against infringing parties. Our clients are concerned about having a top trademark lawyer because infringement damages their reputation, damages the brand, and causes them to incur economic losses. The Spence Law Firm will fight for your rights as a trademark owner by vigorously litigating to quickly obtain a preliminary injunction, then moving the case to a timely and efficient end result, whether mediation and settlement, or trial.
Our trademark infringement attorneys are also experienced in helping defend against claims that you are infringing a trademark. Our firm has the knowledge and experience to successfully defend against trademark infringement claims.
Consult an Experienced Trademark Infringement Attorney
The Spence Law Firm has trademark infringement lawyers that have litigated and tried lawsuits in seven different states over the past nine years, so we’ve been in the trenches and winning for our clients involved in trademark litigation. Call today to schedule a free case evaluation with an Orlando trademark attorney.
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