The grant of a trademark protects the business from unauthorised use by others. Since infringements are always carefully planned, even if a component of the trademark is copied, a suit for infringement may be instituted.
Trademark is an essential element of the overall intellectual property rights of a business. A trademark is what the consumers use to identify goods or services with a certain quality, origin, and utility of a brand. In this post, we highlight what you should do if you find someone else is using your trademark, logo or any part of it.
What Is a Trademark?
A trademark is the whole gamut of identity that the business assumes in a competitive market. A trademark can include many aspects. Any logo (The M for McDonald’s), brand-name (Coca-Cola), a meaningless word (Sony), label (Arrow), numerals (Forever 21) or even a combination of colours used (The yellow and red colour scheme of McDonald’s or Maggi) qualify to be a trademark.
Since a business works hard to use all of these in its dealings, it casts an impression of a certain standard of quality in the goods. Thus, the law prohibits anyone else from employing the same combination and gives the impression that the goods belong to someone else.
What to Do When Someone Else is Using Your Trademark?
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Assess the Situation:
The first step is to carefully assess the situation and gather evidence of the trademark infringement. Take note of where and how the other party is using your trademark, whether it’s on products, marketing materials, or online platforms. Collect any relevant documents, such as photos, screenshots, or copies of the infringing materials.
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Consult with a Trademark Attorney:
Seeking guidance from a trademark attorney is crucial in navigating the process of addressing trademark infringement. A knowledgeable attorney can help you understand your rights, evaluate the strength of your case, and determine the best course of action to take.
The Different Ways in Which Someone Else Could Be is Using Your Trademark
- Counterfeit Products: Another party may be producing and selling counterfeit goods bearing your trademark, attempting to pass them off as genuine products from your company.
- Unauthorized Reselling: A third-party retailer or distributor may be reselling your products without permission, is using your trademark to market and sell them without proper authorization.
- Domain Name Infringement: Someone could register a domain name that is identical or similar to your trademark, using it to divert traffic away from your website or to mislead consumers.
- Social Media Misuse: Individuals or businesses might be is using your trademark on social media platforms without authorization, either in their usernames, profiles, or posts, potentially causing confusion among consumers.
- AdWords or Keywords Misuse: Competitors may be is using your trademarked terms as keywords in online advertising campaigns, leading to your trademark appearing in search results for unrelated products or services.
- Similar Branding: Another company might adopt a brand name, logo, or slogan that is confusingly similar to your trademark, potentially diluting your brand’s distinctiveness and causing consumer confusion.
- Unauthorized Licensing: Someone could falsely claim to have the right to use your trademark through a licensing agreement, leading to unauthorized use of your brand on products or services.
- Infringing Merchandise: Merchandise such as clothing, accessories, or promotional items featuring your trademark may be produced and sold without your permission, infringing on your exclusive rights to use the mark.
Practical Remedies Against Someone is Using your Trademark
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Send a Cease and Desist Letter:
A cease and desist letter is a formal communication sent to the infringing party, demanding that they stop is using your trademark immediately. This letter outlines your rights as the trademark owner and warns of potential legal consequences if they fail to comply. A well-drafted cease and desist letter often prompts the infringing party to cease their activities voluntarily.
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Consider Alternative Dispute Resolution:
In some cases, alternative dispute resolution methods such as mediation or arbitration may be preferable to litigation. These methods offer a more cost-effective and efficient way to resolve trademark disputes while avoiding lengthy court battles. A trademark attorney can help you explore these options and represent your interests throughout the process.
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File a Trademark Infringement Lawsuit:
If the infringing party refuses to cease their unauthorized use of your trademark, you may need to pursue legal action by filing a trademark infringement lawsuit. This involves initiating legal proceedings in a court of law to seek damages, injunctive relief, and other remedies for the trademark violation. A trademark attorney will guide you through the litigation process and advocate on your behalf in court.
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Monitor for Continued Infringement:
Even after taking legal action against the infringing party, it’s essential to monitor for any continued unauthorized use of your trademark. Regularly search for instances of infringement online, in stores, or in marketing materials to ensure that your rights are being respected. Promptly address any new instances of infringement that arise to protect your brand’s integrity.
Unregistered Trademarks
- Even if one of the trademarks is unregistered – either yours or the infringing trademark, courts look at prior use
- If both the trademarks are unregistered, there is a greater chance that the business that started using the mark first gets proprietary rights
- Even if your trademark has registration, legal outcomes may vary if the other business on an unregistered trademark can establish prior use with certain complementary factors. Having a steady customer base and reputation in a certain market would work in their favour
- If you own a registered trademark, your lawyer would help you establish rights accruing from the grant of trademark registration. The court can impose limitations such as barring the use of trademarks of the unregistered entity outside of their geographical market, or region.
Complain About Unauthorised is Using your Trademark
- Domain names are virtual trademarks as they confer identity and address to the brand name
- The expansion of online shopping has made domain name protection even more necessary
- Rules similar to infringement apply to domain name infringement as well
- In a leading case, Maruti Udyog and Suzuki Moto Corp v. World Information Pages – it holds that the use of domain name “marutisuzuki.com” was deceptively similar to the “Maruti Suzuki”. This was held to be an infringement.
Using Your Name as a Trademark
The trademark law recognises the right of every person to use their name in a Bona fight manner for their own business. However, this must be honest, without causing confusion or deception. If there exists a person with the same name in the same market having goodwill and reputation. Then, another person with the same name may not entitle to do his business under that name.
FAQs: Is Using Your Trademark
Yes. If a business obtains an over a specific name – such as “Avon”, it doesn’t necessarily preclude other businesses from using it. However, the most important criteria to consider here is the industry and the nature of goods and services. A bicycle brand “Avon” is not likely to have confusion with a cosmetics brand “Avon”. Hence, the two trademarks may coexist without any likelihood of prejudice to either brand.
Absolutely. Steal, not in the physical sense of the term (even if they run away with your certificates) but in the applied aspects of it. Tata, Reliance and Birla have become such well-known trademarks. Anyone using these in their business is likely to dishonestly induce an assumption of association with these mega-companies.
The practical considerations for suing someone for using your business name would depend on whether they operate in the same industry. Deal in the same goods or services. If they do, the court would look at whether the business name used by the other party is deceptively similar to your business name. In doing so, the essential factor is whether a reasonable buyer intending to buy the goods would have confusion. Additionally, they believe the goods with the infringing to be the original. A classic example is a case against the brand “Parle-J”, which manufactured biscuits and wrapped them in almost identical wrapping as “Parle-G”. Q1: Can I trademark a name if someone else is using it?
Q2: Can someone steal your trademark?
Q3: Can I sue someone for using my business name?
