Trademarks are important business assets. How do customers distinguish your goods or services? They look for your brand, your trademark.
A trademark gives you a monopoly on the use of a symbol, design, word or phrase that distinctively identifies your goods and services. A business has the exclusive right to use a trademark in commerce as long as it does not violate the mark of another business.
A common law trademark
Using a distinctive trademark to publically identify your products is enough to give it protection under common law. As long as your products are for sale, your trademark is protected even if you never actually make a sale.
If someone infringes on your trademark, you may enforce it in state courts. You can use the “TM” symbol to identify a common law trademark but you don’t have to use it.
A federally registered trademark
You can register a trademark with the U.S. Patent and Trademark Office (USPTO). You go to the website to apply, complete an application form, submit a specimen and pay a filing fee. Federal registration means you have nationwide protection and you can sue for infringement in federal courts.
The relatively low cost of a federal trademark registration is a preventative measure that makes enforcing your trademark easier. You can still enforce an unregistered trademark against others, but it is more difficult than if your trademark is registered. Registration informs the world that you own the trademark and no one else should adopt one similar to yours.
Cease and desist letters
When you own a trademark, you have to enforce your rights. This may begin with sending a cease and desist letter to an infringer. An infringement lawsuit is expensive, and many times an infringer will stop infringement upon becoming aware that the trademark owner is lawfully asserting his or her rights.
You may receive a cease and desist letter if the owner of a trademark claims you have misused it in some way. If you have adopted a trademark that is confusingly similar to another brand, you may have to rebrand even if you spent thousands on your product. It is certainly worth conducting research to try and avoid this.
Filing a lawsuit
If an infringer persists, you may need to file a lawsuit to stop the misuse, either at state level or in federal court. You will have to prove that infringement of your trademark has confused your customers and your business has suffered damages as a result.
Infringement suits are usually brought when the same or a similar mark is used in connection with the same or related goods, such as computer technology. If someone brings an infringement suit against you, you may be able to demonstrate that there is no likelihood of confusion.
Hoffer Adler LLP in Toronto has experienced attorneys who represent domestic and international brand owners in acquiring and enforcing their trademarks.
In most cases, the court will award an injunction to prevent further infringement. In some cases, you may receive monetary compensation if the infringer copied your trademark intentionally or knowingly acted in bad faith. The infringer may be required to give up any profits as well as pay additional damages and attorneys’ fees.
Under federal and some state laws, you can sue to prevent your trademark from being used by another person or company if your mark is famous and someone else uses it and “dilutes” its reputation or overuse renders it generic.
After five years of registration, a federal trademark is no longer contestable. When it’s incontestable, you no longer have to worry about someone claiming earlier rights in their trademark to yours.
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