what happens if lawyer filed infringing trademark

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What happens if someone sues you for trademark infringement?

What will happen if someone sues me for trademark infringement. A trademark owner who believes its mark is being infringed may file a civil action (i.e., lawsuit) in either state court or federal court for trademark infringement, depending on the circumstances.

What happens if you get a heads up notice for trademark infringement?

They threaten litigation if the infringement does not stop. Sometimes, they’ll offer a settlement payment or some kind of license or shared ownership of the trademark. (Technically, those “heads up” notices could be considered cease and desist letters.

How can trademark owners protect themselves from trademark infringement?

Trademark owners are tasked with actively protecting themselves from trademark infringement. Failure to seek out and police trademark violations can result in a loss of rights.

What happens if you get an injunction against your trademark?

Injunctions are court orders that prohibit a defendant from using your trademark. When damages are limited, some trademark owners will only seek an injunction and court costs. Your financial loses including loss of business, loss of customers, loss of profits, and/or loss of goodwill.

How does a court determine if trademark infringement has occurred?

Breaking Down The Elements. To prevail on a claim of trademark infringement, a plaintiff must establish that it has a valid mark entitled to protection; and that the defendant used the same or a similar mark in commerce in connection with the sale or advertising of goods or services without the plaintiff's consent.

What can happen to someone who violates another's trademark protection?

an order requiring the destruction or forfeiture of infringing articles; monetary relief, including defendant's profits, any damages sustained by the plaintiff, and the costs of the action; and. an order that the defendant, in certain cases, pay the plaintiffs' attorneys' fees.

What happens when trademark laws are broken?

Trademark infringement can result in the following legal consequences: Monetary reimbursement for losses to the plaintiff. An injunction requiring the defendant to stop producing/using/distributing goods with the trademark. Seizure of goods that use or incorporate the unauthorized trademark.

Can you get punitive damages for trademark infringement?

Trademark infringement involves presuming that the infringer was negligent, but the “malicious” in punitive damages only refers to a situation where the infringer was well aware of another's trademark but nevertheless committed the infringement.

What are the punishments for trademark infringement?

The most common penalty for trademark infringement is an injunction or a cease and desist letter directing the infringer to stop using the trademarked material. It's also possible for criminal or civil penalties to result from an intentional violation of trademark law, although this is rare.

What must a plaintiff prove in a successful trademark infringement case?

What must a plaintiff prove in a successful trademark infringement case? Defendant infringed plaintiff's mark. Defendant used the mark in an unauthorized manner. The use of the mark is likely to cause confusion or deception of the public as to the origin of the services or goods.

How do you fight a trademark infringement?

You may file a declaratory judgment lawsuit, asking a court to declare that your mark does not infringe the trademark owner's mark, and/or that the trademark owner's mark is invalid.

Who is liable for trademark infringement?

If a manufacturer or distributer intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributer is contributorially responsible for any harm done as a result of the deceit.

How do you investigate a trademark infringement?

Online Sale of Counterfeit or Pirated Goods: Trademark infringement may be associated with the sale of counterfeit or pirated goods online using your trademark. If that is the case, you can make a report to the Federal Bureau of Investigation Internet Crime Complaint Center (IC3).

What is willful trademark infringement?

Willful Intent in Law Wise that a willful act is one that is done intentionally in violation of the law. A recent ruling by the United States Supreme Court has resolved the question of whether trademark infringement must be willful to justify awarding compensation.

What treble damages mean?

Treble damages, by statute, permit the court to triple the amount of the actual or compensatory damages awarded to a prevailing plaintiff. When a plaintiff is awarded treble damages in California, the question is whether an insurance company is required to pay those damages.

What did the Lanham Act establish?

The Lanham Act sets out procedures for federally registering trademarks, states when owners of trademarks may be entitled to federal judicial protection against infringement, and establishes other guidelines and remedies for trademark owners.

What happens if you get a trademark infringed?

If the person or entity receives your letter and continues to use your trademark, it’s time to file a lawsuit. The suit will get filed in federal court if it spans more than one state. If the infringement is local, it may get filed in a state court. The purpose of your suit is to stop your trademark from getting infringed upon.

What happens if you don't trademark your name?

But if you don’t and you find someone is using your name or logo after you’re operating and established, the fight becomes who used it first.

What to do if someone uses your company name?

If you suspect someone is using your company name or company logo without permission, you have to prove it. A court of law takes many things into consideration when hearing a trademark infringement case. The first thing they’ll do is apply the “likelihood of confusion” test.

Can anyone get away with infringing on your business?

Don’t let anyone get away with infringing upon your livelihood. If you suspect someone is, you may need help proving it. You need a lawyer that knows the effect of having your trademark infringed upon has on your business. That’s where Revision Legal comes in.

Can you collect damages for trademark infringement?

But you may be able to collect damages if: You can prove your business got hurt financially as a result of the trademark infringement. You can prove the alleged infringer made money from using your trademark. There a few things to remember if you file a lawsuit.

Can you use your business name and logo?

Before you know it, your name and logo are all yours! That means, that only you can use your business name and logo. There are some confusing exceptions. For instance, Delta Airlines and Delta Faucet Company share the same name but have nothing to do with each other.

Can you file a lawsuit for a trademark?

There a few things to remember if you file a lawsuit. The first is that you must file for a trademark in the first place! In court, you can argue on “common law” rights to a name. But, your chances for winning your case are greater if you filed for federal trademark protection with the USPTO.

Who can sue for trademark infringement?

A plaintiff must prove that the defendant used the trademark. Only the legal owner, agent, or licensee of a trademark may sue for infringement. Consumers or third parties negatively impacted by a trademark violation may not institute a civil suit or recover damages for the infringement.

What damages can be awarded to a trademark owner for a violation of a trademark?

These are most often awarded in counterfeit cases. Punitive Damages – These “triple” damages may be awarded to the trademark owner to punish the trademark violator.

What is a trademark violation?

Trademark Violation. Misuse of another company’s brand is considered a trademark violation against the company and consumers alike. This is because American trademark laws do more than protect businesses. They protect consumers by giving them a right to choose specific products based on their unique qualities and reputation.

What is it called when a trademark is confusingly similar to another trademark?

Intentional or not, using a trademark that is confusingly similar to another trademark is infringement. Trademark owners are tasked with actively protecting themselves from trademark infringement. Failure to seek out and police trademark violations can result in a loss of rights.

What is an injunction for a trademark?

An injunction. Injunctions are court orders that prohibit a defendant from using your trademark. When damages are limited, some trademark owners will only seek an injunction and court costs. Your financial loses including loss of business, loss of customers, loss of profits, and/or loss of goodwill.

Is a trademark a civil suit?

United States trademark litigation is most often filed as a civil lawsuit in federal court. Trademark owners have the burden of proving the following legal elements to prove trademark infringement: The trademark is legally protectable and you have standing to enforce the trademark violation.

Is Apple a trademark?

Apple ® is a common example of an arbitrary trademark because it’s a fruit used to designate the source of technology related products. Suggestive: These trademarks creatively suggest something about the trademarked product or service without a direct link. For example, Bearpaw ® is suggestive of boots.

What Counts as Trademark Infringement?

If you want to take steps to cancel an infringing mark, you must first make sure that your mark meets certain requirements:

Cancelling vs. Objecting to a Trademark

The USPTO publishes all new trademark applications in the Trademark Official Gazette, a weekly newsletter which you can find on their site.

Conclusion

When you file a petition to cancel a trademark, you’ll have to prove that the other trademark is infringing on your brand and is causing, or has the potential to cause, damage to your business.

What to do if you don't have a copyright policy?

If they don't have a DMCA Policy, send a simple Copyright Infringement Notice. This would be similar to a DMCA Notice, but not make reference, specifically, to the federal law.

What is trade secret?

A trade secret is a unique type of IP because it is not registered anywhere. A trade secret maintains protection by just being kept secret. Famous examples of trade secrets include the recipe for Kentucky Fried Chicken and the recipe for Coca Cola. The businesses keep these recipes protected by simply not telling anyone and guarding them closely.

Do you have to send a copyright notice?

You are not required to send notices before you hire an attorney or decide to litigate against someone for violating your copyright, but it isn't a bad idea, because even if you do decide to sue, you can show that you tried to amicably resolve the issue before court. If your material is still up, you may wish to hire an attorney. The attorney will likely send a Cease and Desist letter (which is something you can do on your own, as well), and may follow it up with a lawsuit.

Can you send a removal request instead of a notice?

If you'd like to send a friendlier communication at first, you can send a Content Removal Request instead of a Notice. The end result is similar - you are asking for the material to be taken down - but it can be less intrusive. If you would like to have an image taken down, instead of written content, you can use a more specific Image Removal Request.

Is intellectual property a valuable asset?

As discussed in this guide, intellectual property is among the most valuable assets that an individual or business can possess.

How to protect a trademark?

The most powerful way to protect a trademark is to have it registered at the federal level. You do this through the United States Patent and Trademark Office (the “USPTO”). Federally registered trademarks create a legal presumption. That presumption is that the trademark owner has exclusive rights nationwide.

What is a trademark?

First, understand what trademarks are. A trademark is a business’s brand that lets customers know who the source of that good or service is. You create a trademark when you use branding in commerce in connection with that good or service. And they exist to prevent confusion in the marketplace.

Does Indie Law handle trademark litigation?

Indie Law doesn’t handle trademark litigation matters. But there’s a lot you can do before you enter the fighting ring with the accuser. If litigation or a challenge is on the horizon, we’ve got great recommendations for you. Disqus Recommendations. We were unable to load Disqus Recommendations.

Do you have to keep a trademark?

Owning a registered trademark takes responsibility. Not only do you have to keep using the trademark, you also have to enforce your rights . In other words, you risk losing your trademark rights if you don’t call out infringers.

Can you take down a website that violates copyright?

Instead, you’ll receive a notice from the owner of a website hosting platform (such as Etsy or Facebook). Due to a recent law called the Digital Millenium Copyright Act (or the “DMCA”), copyright holders can go through a process with a website platform to take down items that violate copyrights.

Can you register a trademark at the state level?

That presumption is that the trademark owner has exclusive rights nationwide. You can also register a trademark at the state level ( the USPTO has links for all states on this page ). But that only protects the trademark in that particular state.