The hardest part about creativity is ensuring that you are original in your creations. Trademark infringement can happen to any company, from a startup to weathered corporation and sometimes is may be tricky to identify trademark infringement. Sometimes it is intentional in order to piggyback off of your success or to hinder your success. Or it can be entirely unintentional.
Regardless of the reason, it is up to you and your lawyers to prove that the infringement exists. If you identify trademark infringement, it is time to do a little bit more research. Many companies hire this process out to reputable investigation companies, who can verify all of the needed information and collect the necessary evidence for your case.
You first need to establish whether or not your mark is registered to your company. Not having your own ducks in a row can cost you. If your mark is on the Principal Register with the United States Patent and Trademark Office, it is presumed that your ownership is valid. Furthermore, marks that are on the Supplemental Register can also hold weight in court.
The second item to establish is your mark’s seniority to the mark in question, or else you could be the one that is in violation! Establishing seniority gives your mark priority and depending on the length of time that your mark has been on the Principal Register, you may have a leg up. For example, if your mark has been in use for five years of continuous use, it becomes incontestable.
Third in the queue, is showing that the mark in question is likely to cause confusion among consumers, pertaining to the source of the goods or services being offered. In addition to confusion, dilution can also be used as a reason for infringement, as distracting from a company’s message or image is also frowned upon.
Gathering evidence to identify trademark infringement in all three of these key areas should be held to a high standard to ensure your case is a solid one. This evidence is not limited to proof that a similar mark is being used. You also should document any instances where the mark in questions created confusion among customers or dilution in the eyes of consumers. Once all of the conditions for infringement are seemingly met, taking your claims to local or federal court is the next step.