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Has Your Trademark Been Infringed Upon?

On Behalf of | Dec 28, 2020 | Trademark Law

You have worked hard to develop the trademark for your business’s identity, and now you see another person or company using your trademark to promote their goods. What resources do you have?  Understanding what constitutes trademark infringement can help you protect your intellectual property rights as a business owner. Trademarks are essentially any symbol or word that represents a company or product. As a business owner, you have a legal right to control your trademark. We will discuss how to tell whether your trademark has been infringed upon and what types of action you can take.

Types of Trademark Infringement

Trademark owners have an exclusive intellectual property right to their trademark. When someone uses a business-owners trademark or service mark without permission from the owner, they are engaging in trademark infringement. When business owners see that their trademarks have been infringed upon, they can sue the offender for trademark infringement. If successful, the defendant will need to stop using the trademark and pay damages to the trademark owner. Trademark owners need to prove the following elements to succeed in a trademark infringement case:

  • The defendant used the service mark or trademark
  • The defendant did not have permission to use the trademark
  • The trademark use was connected to the plaintiff’s goods or services
  • The defendant’s use the trademark in a way likely to cause confusion, deception, or mistake about the source of the services or Goods

Filing a Trademark Infringement Lawsuit

Suppose you are a business owner who has discovered that another company is using your trademark without your permission. In that case, you have the right to file a civil lawsuit in federal court or state court for trademark infringement. In most cases, business owners choose to file their cases in federal court because trademark issues are federal issues that arise under U.S. trademark laws.

After you file the lawsuit, the court will hear evidence regarding the alleged trademark infringement. You will need to present evidence that the goods or services that the defendant used were sufficiently related to your goods or services in a way that would make customers mistakenly think that their products come from the same source as your products.

What if I Have Not Registered My Trademark?

There is a common misunderstanding that if you have not registered your trademark yet, you ca not sue for trademark infringement. This is not the case. Registering a trademark with the US Patent and Trademark Office is optional for stopping trademark infringement. You do not have to register your trademark to be able to protect it legally. Nonetheless, registering a trademark can be an important tool to protect your rights.

Unregistered trademarks only give the business owner rights within a smaller geographic area in which the business owner operates. For example, suppose you are a business owner in Cincinnati and have not registered your trademark. In that case, you will not be able to sue someone in Florida who uses your trademark without your consent to sell products.

Additionally, unregistered trademarks, also called “common law” trademarks, are protected by state laws enacted to regulate unfair competition among businesses. Local laws vary when it comes to protecting trademarks. Depending on the location of your business, the trademark protection laws may not be advantageous.

As the owner of an unregistered trademark, you may be able to file a lawsuit in your state court, but only if the person violating your trademark rights lives in your geographic area. You should also consider registering your trademark, particularly if you suspect that other businesses are violating your trademark rights.

Who Has the Right to Enforce a Trademark?

If you decide to go forward with your trademark infringement lawsuit, there are several different elements you will need to prove to be successful. First, you must prove that you own the trademark, specifically that you control the trademark. You also need to show that you control the quality of goods and the nature of services provided to customers in connection with the services, brand, or products offered. Individuals who operate their businesses as sole Proprietors can own trademarks. Limited liability companies, partnerships, corporations, estates, trusts, and individuals can also own trademarks.

Only the trademark’s legal owner has a right to enforce the trademark by bringing a trademark infringement lawsuit. What happens when an individual registers a trademark in his personal name for the benefit of his company? When this happens, the company will have difficulty enforcing the trademark because an individual owns the trademark. It is important to consider the consequences for who registers your trademark. If someone infringes on your trademark, you want to make sure that you have the right to take legal action against them. If you were not the legal owner of the registered trademark, you would not be able to bring a lawsuit to protect your rights.

Trademark Infringement Remedies

Many of our clients are concerned about whether filing a trademark infringement lawsuit is worth the time and costs associated with it. There are a variety of remedies businesses can request after they have been subjected to trademark infringement. Remedies for trademark infringement can include any of the following:

  • A court order called an injunction that prevents the defendant from continuing to use the trademark
  • A court order that requires the defendant to forfeit or destroy any trademark use that infringes on the owner’s rights
  • Monetary relief for damages caused by the trademark infringement
  • Monetary relief for the defendant’s profits gained by using the trademark without the owner’s consent
  • Monetary relief for the cost associated with bringing the trademark lawsuit
  • A court order requiring the defendant to pay for the trademark owners legal fees and cost

Contact a Chicago Trademark Infringement Lawyer

Has another business been infringing on your trademark rights? If so, you need the help of an experienced trademark attorney. Contact the Chicago trademark lawyers atAU LLC today to schedule your initial consultation.