Trademark Infringement

What is trademark infringement?

There are only so many words in the dictionary.  Creativity has its limits.  In a country as large and diverse as the United States, there are bound to be conflicts over brand names.  And conflicts there are!  Sometimes, the conflict is the result of inadvertence – the failure to clear a mark for use before actually using it.  Other times, it’s just business – competitors pushing the envelope with a trademark that looks and sounds an awful lot like an established, known brand.

How does a trademark holder know whether or not infringement exists?  Every situation is different and turns on its own unique set of facts.  Is the senior mark entitled to protection?  Is it registered?  Has its owner established rights through use in commerce?  What is the scope of those rights?  How strong is the senior mark?  Does the trademark owner own exclusive rights to the trademark in gross, or are its rights limited to a class of goods or services?  Is the junior mark confusingly similar to the senior one in sight, sound, or meaning?  Do the two marks compete in the same markets for the same customers?  What if you never applied for a trademark registration?  What rights does a common law trademark holder have to protect its mark?  Can someone claim trademark rights in a dictionary word?  How about a descriptive word or phrase?  Is a trademark holder required to sue every possible infringer to maintain its rights?  A trademark attorney can help you to determine whether you have a legitimate claim for trademark infringement, and what your rights and remedies are.

Sometimes trademark infringement claims can be overreaching.  This is often the case when it comes to disputes over dictionary word domain names.  Receiving a threatening letter from a law firm is rarely a pleasant experience.  If you find yourself on the receiving end of a cease and desist letter and want to know your rights, you should speak to a trademark attorney, or, in the case of disputes involving domain names, a domain name attorney. Our sections on Cease and Desist Letters, Trademark Dilution, Domain Names, Litigation and Opposition provide more information on trademark infringment and enforcement.