What can I do if someone violates my trademark?
However, if the violator continues to impede on your trademark, then your attorney can file a legal document with a court of appropriate jurisdiction to ask the judge to issue an injunction. An injunction is a court order to the violator.
What are the laws for trademarks?
Both state and federal laws govern trademarks. In the past, state common law served as the main source of trademark protection. However, in the late 19th century, Congress passed the first federal trademark law. Over time, federal laws for trademark protections have expanded. Now, federal laws are the main source of trademark protection.
Do you have to enforce your trademark rights?
Fourth, when it comes to trademark enforcement, you use it or lose it. Owning a registered trademark takes responsibility. Not only do you have to keep using the trademark, you also have to enforce your rights. In other words, you risk losing your trademark rights if you don’t call out infringers.
What is trademark infringement and how can you avoid it?
Criminal trademark infringement is the unauthorized and illegal use of someone else's trademark to create confusion between the original and another mark. Businesses spend a great deal of time, energy, and money on the trademarks that represent their brand.
What can happen to someone who violates another's trademark protection?
an order requiring the destruction or forfeiture of infringing articles; monetary relief, including defendant's profits, any damages sustained by the plaintiff, and the costs of the action; and. an order that the defendant, in certain cases, pay the plaintiffs' attorneys' fees.
Can you trademark a treatment?
The name and logo you use to identify your physical therapy services, whether you are a free-lance therapist or own a large practice, can be usually protected under trademark law.
How do I get someone to stop trademarking me?
The first step is to contact an attorney specializing in trademark law. He or she will help you through the next steps: Trademark issues typically begin by sending a cease-and-desist letter to the infringing business and demanding that they stop using your mark.
What is the most common defense to an action for trademark infringement?
descriptive fair useThe most common defenses in trademark infringement, unfair competition and trademark dilution suits include descriptive fair use, nominative fair use, laches, unclean hands and trademark misuse, fraud in obtaining the registration, and application of the First Amendment.
What is the punishment for trademark infringement?
The most common penalty for trademark infringement is an injunction or a cease and desist letter directing the infringer to stop using the trademarked material. It's also possible for criminal or civil penalties to result from an intentional violation of trademark law, although this is rare.
Which of the following acts may be considered as an act of infringement of the trademark owner's right?
What does Infringement of Trademark mean? Trademark infringement in India is defined under Section 29 of the Trademarks Act, 1999. Simply put, when an unauthorized person uses a trademark that is 'identical' or 'deceptively similar' to a registered trademark, it is known as infringement.
How do you enforce trademark rights?
If the mark is registered with the United States Patent and Trademark Office (USPTO), you can file a lawsuit in federal court. If the mark is unregistered and the infringing mark is being used in the same state, your dispute may be resolved in state court.
What is the fair use defense to trademark infringement?
In the context of trademarks, “fair use” is the term given to the use of someone else's trademark in a way that will not subject the user to liability for infringing the owner's rights. Fair use is a defense to a claim of trademark infringement.
What constitutes a trademark violation?
Trademark infringement is defined as the unauthorized use of a trademark or service mark. This use can be in connection with goods or services and may lead to confusion, deception, or a misunderstanding about the actual company a product or service came from.
What are affirmative defenses to trademark infringement?
Affirmative defenses may include unclean hands, laches, estoppel, acquiescence, fraud, mistake, prior registration (Morehouse) defense, prior judgment, or any other matter constituting an avoidance or affirmative defense.
Copyright
The Federal Bureau of Investigation is serious about copyright enforcement. With encouragement from the entertainment industry, they will shut you down if you have been downloading pirated movies like a hoarder. Even the occasional movie pirate can get caught.
Trademark
Though less common, criminal penalties can attach to trademark violations. More often, private parties will sue when they think someone has violated their trademarks. If a plaintiff wins the lawsuit, however, then it's a whole new ball game. Judges order losers to pay judgments, fines, court costs, and other monetary penalties.
Patents
Patents are a different animal. They are in the same species of intellectual property as copyrights and trademarks, but there are no criminal remedies for infringement. But attorney Brooke Blackman, writing for IpWatchDog, says there oughta be a law. "Given the current state of the U.S.
What to do if your trademark is being used in a way you did not authorize?
If your trademark is being used in a way you did not authorize, you can take steps to stop it with the help of a competent attorney. The usual first course of action is to consult with an attorney experienced in trademark law who can draft a cease and desist letter.
What is criminal trademark infringement?
Criminal Trademark Infringement — What Is It? Criminal trademark infringement is the unauthorized and illegal use of someone else's trademark to create confusion between the original and another mark.
What is an injunction in a trademark?
An injunction is a court order to the violator. This document orders the violator to stop using the protected trademark or risk penalties. Some courts may also award damages and attorney fees at the same time the injunction is issued if they find the violations were blatantly intentional or especially egregious.
How to maintain a trademark?
How to Maintain Your Trademark for Protection. Once you have a trademark through registration or common law use , you will need to take steps to protect the trademark. One of the best methods for protecting your trademark is simply using the mark regularly.
What is trademark protection?
Trademark protection refers to safeguarding intellectual property rights to protect a trademark from counterfeiting and infringement. A trademark is an established or legally registered mark that identifies a manufacturer's unique goods and services. The owner of a distinctive mark can apply to receive trademark protection.
What is an arbitrary trademark?
An arbitrary or fanciful trademark is one of the strongest types of trademarks eligible for protection. An example of an arbitrary mark is an English word used in a new context. For example, Apple is the name of a company that sells smartphones and computers. Blackberry refers to a mobile phone for business.
How to determine if a descriptive trademark has acquired a secondary meaning?
To determine whether a descriptive trademark has acquired a secondary meaning, the courts will look at the following: The volume of sales. The manner and length of the term's use.
How many times can a trademark be renewed?
The owner of the mark can renew the original registration as many times as need for additional 10-year periods. Trademark owners need to complete their renewal applications and file them with the USPTO.
How long is a trademark valid?
Patent and Trademark Office's Principal Register, the owner of the mark will receive a certificate. This certificate of registration is valid for 10 years. However, if the owner does not file a statement within five or six years of the mark's registration date, the trademark's registration may expire. The purpose behind this statement of use is to inform the USPTO that the mark is being used in commerce.
What is trade dress?
These features are trade dress. If consumers tend to associate a certain feature with a brand and not the type of product, trade dress may apply . However, these features will not receive trademark protection if they offer a competitive or functional advantage over other products.
How to protect a trademark?
In order to protect your registered trademark, you must police it. While the USPTO registers the trademark, they are not responsible for enforcing the exclusivity of its use. The first step is to begin using the ® symbol once your trademark application has been registered. This provides public notice to other businesses or individuals that the mark is federally registered and protected . Include the symbol wherever your trademark is seen, from signs to labels, even your website. Most people don’t wish to infringe on your mark, and this public notice will dissuade most from doing so.
How to get full trademark protection?
To get full trademark protection, you must register with the USPTO. The date on which you file your application will become your national priority date on your trademark (in most cases). This means that no other business or individual will be able to register a confusingly similar mark after this date.
What is a trademark?
Your trademark is often the first interaction a person has with your brand. If chosen well, it should also protect against infringement—both willing and unwilling. The process to choose a strong mark, therefore, should be carefully thought out from the start. Trademarks can be divided into four categories, based on their strength:
What happens if you miss the renewal deadline?
The responsibility to renew is that of the trademark owner, and if a renewal deadline is missed, the trademark will be canceled. Starting a business means you are managing a never-ending list of priorities. Knowing how to protect your trademark should be at the top of the list.
What is a cease and desist letter?
Often a cease-and-desist letter is all that is needed to put the infringer on notice. If that doesn’t work, however, your legal protections as a trademark owner give you the right to file suit against the unauthorized user.
Why wait to register a trademark?
Waiting to register your mark could force you to forgo your protections if another business or individual registers their similar mark first. In addition, your trademark attorney will know how to protect your unique mark by accurately identifying the types of goods and services you wish your trademark to represent.
What are fanciful trademarks?
Fanciful trademarks offer the strongest protection. They are invented terms with no relation to the product or service provided. Verizon, Starbucks, and Nike are all fanciful trademarks. Fanciful and arbitrary trademarks offer the strongest level of protection against infringement.
What is a trademark?
A trademark is something that represents your brand in the marketplace . Typically, business or product names, logos, or slogans are registered as trademarks. Items such as distinct product packaging, colors and sounds may also obtain trademark protection. The USPTO will not grant registration for generic or descriptive terms or anything ...
Why is a trademark important?
A strong federal trademark serves as a valuable marketing tool and will work to establish brand recognition. As you differentiate your business from others in your industry, your trademark will help consumers identify your products or services in the marketplace, which will allow you to grow and expand your business.
How many trademarks does Gerben Law Firm have?
Gerben Law Firm has registered over 4,500 trademarks since opening our doors in 2008. We work with clients from all 50 states, and, from 30+ countries around the world. Contact us today for a free consultation with a trademark attorney.
Do inventions need a patent?
Inventions, for instance, will need a patent issued by the USPTO to be protected against infringement. Works of authorship, on the other hand, should be registered with the U.S. Copyright Office. Common copyrights include works of art, novels, songs, and even computer coding.
Can non-generic words be trademarked?
Non-generic words, logos, slogans, colors, smells, and sounds can all be registered with the USPTO, as long as you can demonstrate how they represent your business. Inventions and works of authorship cannot become registered trademarks and should be protected with patents or copyrights respectively. As always, work with an experienced attorney ...
Can you trademark a surname?
Surnames are considered descriptive, and though it is possible to trademark a surname, the process is much more challenging and could take years of documentation to prove the name truly represents your business. Until recently, obscene words and symbols have not been approved by the USPTO.
Can a dessert be a trademark?
Perhaps you even smell your favorite dessert’s trademark in a mall or airport food court. Yes, all of these examples, and more, can become registered trademarks. The USPTO currently accepts trademark applications for the following: Words.
What Is a Common Law Trademark?
A common law trademark is a mark, word, phrase, or combination of all three established through business or commercial use. It does not need to be federally registered but is associated with a brand or a product in a specific geographical area. Common law trademark can include the following:
How Is a Common Law Trademark Different From a Federal One?
There are many differences between how common law and federal trademarks works, as listed in the table below:
How To Establish a Common Law Trademark
Before you establish your common law trademark, you need to confirm that your mark is original and no one else is using it in your vicinity. Although you may not be sued, you might need to rebrand your business to stay original, which can be costly.
Does Common Law Trademark Provide Protection?
Since they are not federally registered, common law trademarks offer little protection to a business. The only way to truly protect your trademark is to get it registered. There are various benefits of registering an official trademark, such as:
How To Register Your Trademark With the USPTO
You need to follow these instructions to file your trademark with the USPTO:
Register Your Trademark the Easy Way Using DoNotPay
Registering a trademark can be a tedious process. You need to avoid making any errors or risk your application being rejected. Consulting a lawyer is a good option, but it can be quite expensive.
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Criminal Trademark Infringement — What Is It?
What Can I Do If Someone Is Infringing on My Trademark?
- Though less common, criminal penalties can attach to trademark violations. More often, private parties will sue when they think someone has violated their trademarks. If a plaintiff wins the lawsuit, however, then it's a whole new ball game. Judges order losers to pay judgments, fines, court costs, and other monetary penalties. In trademark cases, ...
Federal Crimes That Intersect with Trademark Infringement