Intellectual Property Law
Trademark Violations and Infringement
Trademark violation or infringement is any unauthorized use, and ranges from blatant and purposeful infringement to unintentional infringement and trademark dilution. In any scenario of trademark infringement, the overall net effect will typically include one or more of the following - the rights of the trademark owner are violated, the value of the original trademark is often diminished, and the general public of consumers can be misled as to the source of the products in question.
To succeed in a trademark infringement action, the owner must show that the defendant’s use of the mark created a likelihood of confusion about the origin of the defendant’s goods or services.
As soon as the violation is discovered, it is important to act quickly. Notify the infringing entity of their violation and demand that they cease such action. If such demands prove futile, you will have to litigate; hiring legal counsel is crucial. Under the Lanham Act which sets the standard for trademark infringement law, a trademark owner that successfully proves infringement can recover actual damages, plus the profits that the infringer wrongfully received from the unauthorized use of the mark, and attorneys’ fees.
As e-commerce has expanded worldwide, one issue that has emerged involves the rights of a trademark owner to use the mark as part of a domain name. If you are involved in a domain name dispute or have been accused of cybersquatting, it is imperative that you seek legal counsel as soon as possible.
There are three main defenses to an accusation of trademark infringement: fair use, parody and criticism. The fair use defense is appropriate when the trademark was intended to be used for its primary meaning and not to cause consumer confusion. Parody and criticism, in certain circumstances, are protected under the First Amendment, and can be used as a defense as long as it is not tied to commercial use.