Trademark Infringement – A Business Tort
The term “trademark” has recently become more popular in our society. We constantly hear about trademarks throughout the media and how celebrities are filing trademarks for their catchphrases, children’s names and brands. Trademark is not just a term that applies to major companies and corporations anymore; even small businesses are making their mark with trademarks. With everyone becoming more aware of how important trademarks are to owning our unique identities and ideas, taking into account how easy it is for people to imitate or copy your ideas, this brings forth a greater opportunity for a common business tort to occur – trademark infringement.
What is trademark infringement?
Trademark infringement is essentially the unauthorized use of a mark that’s connected with a business that provides a good or service. The unauthorized use of the mark creates confusion among potential customers. In business, this can result in a company gaining an unfair advantage and create unfair competition between companies.
What to Do When Someone Uses Your Mark Without Authority
There are two actions that one can take when another infringes on a trademark. The actions are:
- Send a trademark cease and desist letter.
This letter should be your first step in protecting your rights. The cease and desist letter is basically a formal notice demanding the person or entity to stop using your trademark (cease), and to not continue the use of the trademark (desist).
Further, the letter states that in the event that the person or entity does not stop use of the mark, that you’ll take legal action against them. It’s important to keep in mind that this letter is not legally binding, but it can be successful as a deterrent to the infringing party.
A cease and desist letter sent by a West Palm Beach business torts attorney lets the infringing party know that you’re serious about protecting your assets and property. Because the letter is not legally binding, your attorney should be ready to assist you with the next step – filing a trademark infringement lawsuit.
- File a trademark infringement lawsuit.
This process is self-explanatory. In Florida, a trademark infringement lawsuit can be brought under Florida law, the Registration and Protection of Trademarks Act, or under a federal law known as the Lanham Act.
Although you have these two options available to you, before taking any of these actions, you must own the mark. Meaning, you have no rights to the mark and have no right to send a cease and desist letter or file a trademark infringement lawsuit when you don’t even have ownership of the mark. If you don’t own it, it’s free and open to the public to use however they wish.
How Do I Know if My Mark is Being Infringed Upon?
If you’re interested in seeing if someone else is infringing on your mark, there are several steps you can take, such as creating a Google alert for the name of your trademark. On a more official note, you should perform a search on Florida’s trademark database.
On the federal side, you should search the United States Patent and Trademark Office (USPTO) database as well.
Contact Our Experienced West Palm Beach Business Torts Attorney
If you believe you’re experiencing trademark infringement and unfair competition, the West Palm Beach business tort attorneys at Kelley Fulton Kaplan & Eller are here to help. We can help you resolve the situation swiftly as possible while protecting your interests. Call our office for a consultation with an attorney at 561-264-6850.