There are few things more alarming that finding out that someone else is using your trademarks. It feels like part of your business’ identity has been stolen. Even more than infringement of your patents and copyrights, trademark infringement goes to heart of your business. That’s because trademarks stand for the market’s view of you and your products. If someone else is using your trademarks, they’re free-riding on all the customer goodwill you’ve painstakingly developed. What’s worse (from a legal perspective), consumers might be hurt because they might not be getting what they think they’re getting.
At Rick Sanders Law, we have the tools and the experience to help you shape your brand or logo’s entrance into the marketplace, hopefully saving you the time and money and hassle of inadvertent conflict with another brand. Contact us to see how we can help you on your way.
The first step in figuring out what to do is determining whether you actually have a protectable trademark. As we’ve explained here, not every name, slogan or logo is protectable. If your product is REALLY EXCELLENT e-books, you don’t have much cause to complain if your competitor also describes its e-books as “really excellent,” even if that use is prominent. If that’s the case, you have a real problem, like putting your water for a desert journey in a leaky canteen.
The second step is determining whether there’s infringement. This analysis is “fact intensive,” which is lawyer-speak for “really messy.” Mostly, you balance the strength of your trademark, against the similarity between the two trademarks, against the similarities of the relevant markets. So, does strong + similar + similar = infringement (probably!). But life is rarely so mathematical. What if the trademarks are really similar? How dissimilar can the markets be before a claim for trademark infringement isn’t worth bringing? Complicating matters: courts may also consider several other factors.
The third step is to work out a responsive strategy, which will depend on the strength of your claims, the real threat to your business, your resources, your tolerance for lawyers, the threat to the strength of your trademark and the nature of your adversary. You have a number of options: filing a lawsuit or firing off a nasty cease-and-desist demand letter are just two options. You can also reach out to the other side in a more conciliatory fashion and try to work out an arrangement everyone can live with.