If your business is like most, it relies heavily on brand recognition to attract new customers and develop the consumer loyalty required to sustain long-term and profitable growth. In short, your name matters, and if a competitor begins using your name (or something very similar to it) to cut into your business, you are right to be considering legal action to protect your investment in your brand’s development.
This is the world of trademark infringement. In legal terms, a trademark is “any word, name, symbol, or design . . . used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.” Apple, Samsung, Google, Twitter, Coca-Cola – these are all trademarks that are protected under federal law.
Understanding Your Company’s Trademark Rights
Of course, famous brands like these are not the only ones that are protected. Any individual or company can adopt and register a trademark, and even local shops and small businesses can have a legitimate interest in securing exclusive trademark rights. In fact, as a small business, securing (and enforcing) trademark rights can be critical, since infringement by a direct competitor with deep pockets or a savvy marketing plan could easily lead your customer base astray.
Importantly, if you use a brand name or logo in the marketplace (and you are not infringing someone else’s rights), you have protectable trademark rights even if you have not registered your company’s trademark with the U.S. Patent and Trademark Office (USPTO). While USPTO registration affords several key benefits, it is not a requirement to file a claim for trademark infringement.
Trademark Infringement: A “Likelihood of Confusion”
In trademark infringement litigation, the question is whether one company (the “junior” trademark user) has created a likelihood of confusion in the marketplace by using a trademark that is “confusingly similar” to a “senior” owner’s trademark. The courts examine a number of different factors in assessing whether there is a likelihood of confusion, including:
- The strength of the senior user’s trademark
- The proximity (similarity or relatedness) of the senior and junior users’ products or services
- The likelihood that either user will expand into the other’s product or service lines
- The senior and junior users’ respective marketing channels
- The similarity of the trademarks in question
- The types of products or services sold under the trademarks and the degree of sophistication among relevant consumers
- The junior user’s intent in selecting its mark (i.e. did it intend to profit from the senior user’s brand recognition)
- Any evidence of actual confusion
Infringement can quickly cause significant harm to a trademark owner’s market position and goodwill, and the law accounts for this by providing for preliminary injunctive relief in appropriate circumstances. If you believe that a competing business may be infringing your company’s trademark, taking action quickly can be critical to protecting your rights and limiting the negative consequences for your business.
Speak with a Business Litigation Attorney at Michael L. Feinstein, P.A.
With offices in Fort Lauderdale, Michael L. Feinstein, P.A. represents businesses throughout South Florida in trademark infringement litigation. To discuss your case with one of our attorneys, call (954) 767-9662 or request a consultation online today.