Trademarks are a type of intellectual property that provides protection for an individual or company's brand. Trademarks can protect short phrases, designs, names, devices, words, or symbols that are used in connection with goods and/or services. The purpose of trademark protection is to allow companies to indicate that they are the source of the goods and/or services and to distinguish their goods and/or services from other companies, thereby providing an affirmative defense to infringement. Trademark infringement can occur when a company uses a mark that has been trademarked by a different company or if the mark is so similar that it will cause confusion to the general public. This article provides answers to a variety of trademark infringement questions.
What is trademark infringement?
Trademark infringement occurs when a person or company uses a trademark without authorization from the owner of the trademark in a way that will be likely to confuse or deceive the public about the source of the services and/or goods.
Is it trademark infringement if someone else is using my company's name but for a different business?
Not necessarily. Since trademark infringement law seeks to prevent customer confusion, if a certain company name is the same or similar but is being used in two unrelated businesses or locations, it may not create customer confusion as to the source of the goods and/or services.
What is an example of when a similar mark wouldn't be confusing for customers?
While performing a routine Internet search for his company, Bob finds out that there is another company using his name in a different line of business. Bob's business builds business communications networks for its customers in Oregon and he has named his business Bob Builds IT. While searching the Internet for his business, he ran across Bob Builds It, a small business that does carpentry in Ohio. Bob now wants to know whether a violation of trademark law.
In this hypothetical, it's extremely unlikely that anyone would be confused by a carpenter when buying a computer and vice versa. Also, given the geographic separation, confusion is even less likely. Accordingly, these businesses seem to be coexisting well, with little or no overlap between their customers, and there is likely no trademark infringement.
How are trademark rights established?
Like a copyright, trademark protection doesn’t require any formal acts -- it can be established by legitimately using the mark in a business or commercial setting.
What can I do to better protect my trademark?
Although not required, registering your trademark with the United State Patent and Trademark Office (USPTO) has certain advantages, including better protecting you from trademark infringement. Federal trademark registration creates a legal presumption that the registrant is the trademark owner. In addition, a trademark owner who registers his or her trademark with the USPTO is allowed to file a lawsuit in federal court in the event of an infringement.
What is the procedure for registering a trademark?
Trademarks can be registered online through the USPTO's Trademark Electronic Application System (TEAS). A trademark application generally includes the following information:
Please note that there are specific procedures one must follow when applying for federal trademark registration, and failure to follow these procedures with result in a rejection of your application.
Getting Legal Help
If you have any questions about trademark infringement, or would like to find out more about trademark law, you may want to contact an experienced trademarks attorney in your area.
If you would like more information and resources related to this topic, you can visit FindLaw's section on Trademarks.