If you own a business or create content, you probably come into contact with trademarks quite regularly. Whether you use them in your own line of work or deal with clients or competitors who do, it’s important to recognize and understand examples of trademark infringement.
Recognizing trademark infringement not only protects your own intellectual property, but it also helps safeguard you against committing trademark infringement yourself. In some cases you can commit trademark infringement without even knowing it.
The first step in understanding and recognizing examples of trademark infringement is learning about trademarks themselves. A trademark is a unique sign, image, phrase, logo, etc. that distinguishes one good or service from another.
There are two main types of trademarks: common law marks and registered marks. Common law trademarks may only use the ™ or ℠ symbol, and a registered mark uses the ® symbol. You apply for a registered trademark through the United States Patent and Trademark Office and you gain common law trademark protection rights just through use of the trademark.
Whether you use a registered or common law mark, you have certain rights. If a competitor violates your trademark rights or vice versa, there are consequences.
Common law trademarks offer several benefits. If you have a small local business, an unregistered mark might be enough to protect you and your business.
If you are starting a new business and you aren’t quite sure about a mark, consider waiting to register. Common law trademark rights offer you flexibility and protection without having to prove use in the marketplace.
If for the reasons listed above you decide to move ahead without registration of your mark, you have priority over anyone who tries to register the mark after you. If someone attempts to use or register a trademark you have common law rights over, he or she may be committing trademark infringement.
Registering your mark with the United States Patent and Trademark Office also come with its own unique set of benefits.
Expanding your business is one reason to register your trademark. Common law protections often only extend to your local geographical area. If you plan to conduct business either online of move outside of your jurisdiction, consider registering your mark. If you don’t, common law protections might not protect you from all types of infringement.
Applying and registering your trademark with the USPTO allows you to bring action against your competitors for trademark infringement in federal court. It also protects you against the importation of good and services that infringe on your trademark rights.
Abandoned trademarks are marks that are no longer recognized by the United States Patent and Trademark Office. When you apply for a registered trademark, there are certain guidelines you have to follow. If you fail to keep up with the guidelines given to you by the USPTO, your trademark might die. You can also choose to abandon a trademark if you no longer use it.
Regardless of how a trademark becomes dead or abandoned, registering a previously abandoned trademark can be difficult. Although the mark doesn’t have the recognition of the USPTO anymore, the owner might maintain some common law rights. If you try to register the mark, you might commit trademark infringement. Remember that common law trademark holders sometimes have priority over a mark.
Trademark infringement is the unauthorized use of a trademark or service mark. Any time the source of a good or service becomes unclear because of the unauthorized use of a trademark or service mark, trademark infringement has taken place.
Now that you understand trademarks and the concept of trademark infringement, reading some examples of trademark infringement will show you the applications of trademark rights.
One of the most famous trademark infringement cases is Polaroid Corporation v. Polarad Electronics Corp. Polaroid felt the use of the name “Polarad” infringed on its many trademarks. Although ultimately the judge decided there was no infringement because of the absence of likelihood of confusion, the case is important to remember because it set a precedent for proving infringement.
Starbucks filed a lawsuit in 2016 against Obsidian, the parent company of New York’s Coffee Culture Café, after their creation of a drink called a “Freddocino.” Although the names of the products are technically different, Starbucks believes the similarities between their drink the “Frappucino” and their competitor’s drink will cause confusion in the marketplace.
In 2014, T-Mobile filed a lawsuit against AT&T’s AIO Wireless for using Pantone 676C, the magenta color it uses in its own logo. T-Mobile claimed consumers would be confused by the closeness of the colors and assume that T-Mobile owned AIO Wireless. The Texas court ordered AT&T to stop using the color because T-Mobile was able to prove likelihood of confusion.
There are consequences for trademark infringement. Consequences include: court orders to cease use of the mark in question, destruction of goods using fake or copied marks, monetary damages, and payment of the plaintiff’s legal fees.
If you are the victim of trademark infringement, the burden of proof is on you. As the plaintiff, you will have to prove likelihood of confusion using the Polaroid factors to win your case.
Understanding trademarks and learning to recognize trademark infringement is an important part of protecting your business. Reading up on examples of trademark infringement is a step in the right direction to master these concepts.
If you ever feel like you are the victim of trademark infringement of you worry about committing infringement yourself, consider seeking out legal aid.
Remember that trademark infringement is all about logos, images, phrases, etc. that differentiate your goods and/or services from some else’s. Unauthorized use of any of the above that causes confusion in the marketplace might lead to a trademark infringement lawsuit.
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LAWYER & ONLINE ENTREPRENEUR
After graduating from law school and passing the bar, I struggled to find work, pay my bills, and make ends meet. That's when I decided to take control of my future and start working for myself. Now, several years and a handful of companies later, I'm sharing how I launched a successful business, and how you can do it too.