What Counts as Trademark Infringement?

Many elementary school teachers will tell you that, while interacting with students is the best part of their job, compared to dealing with complaints from parents, working with limited financial resources, and adapting to constantly changing rules from the school district, one of the most annoying things that students do is complain to teachers that another student is copying them. Imitation can be the sincerest form of flattery, or it can be mean-spirited mockery. In business, imitating another company’s ways of marketing their products can violate intellectual property laws. The law protects businesses from imitators unfairly capitalizing on the success of the original company’s innovation by using copycat logos and the like. If your business has suffered financial losses because of trademark infringement by a competitor, contact a Dallas business cases lawyer.

What is a Trademark?

A trademark is an intellectual property protection that gives the trademark holder the exclusive right to use a unique marking that identifies the trademark holder’s company, products, or services. Examples of trademarks include brand names (such as Chick-fil-A), logos (such as the McDonald’s golden arches), slogans (such as “America runs on Dunkin’”), or symbols (such as the Keebler elves). You may register a trademark by applying for trademark registration with the United States Patent and Trademark Office (USPTO). It is much easier to get a trademark application approved than it is for a patent because you do not need to explain all the scientific research that went into your trademark and go into detail about how it is different from its predecessors; in other words, the standard for uniqueness is lower. Once the USPTO has approved your trademark, you can use the registered trademark symbol (a letter “R” inside a circle) next to your brand name or another trademarked item. Even before your trademark is officially registered, you can publicly stake your claim to the uniqueness of the identifiers of your business by using the trademark symbol (the letters “TM” in superscript).

Claims That You Must Prove in a Trademark Infringement Lawsuit

If a competitor misuses your trademarked content, this is trademark infringement. Trademark infringement occurs when a competitor uses an identical brand name, logo, or symbol to yours without your permission. It also counts as trademark infringement when the competitors’ version is not identical to yours but is similar enough that you reasonably expect customers to mistake it for your product or logo. This may be the reason why, despite trademark laws having been in place for centuries, you still see so many fake designer clothes and perfumes for sale in outlet malls and online; the appearance and price of the products are so different from the original that customers who buy these fakes must know that they are buying a fake.

Trademark holders have the right to file trademark infringement lawsuits against competitors who market imitations of the trademark holders’ products without the trademark holder’s permission.  To win a trademark infringement case, you must prove the following claims:

• You own the trademark
• The defendant used a name, slogan, or logo that was identical to yours or closely resembled it
• You did not give the defendant permission to use your trademark
• The defendant’s content was similar enough to yours that customers could reasonably have mistaken it for yours
• You suffered financial losses or loss of reputation because of the defendant’s unauthorized use of your trademark

You can file a trademark infringement lawsuit in state or federal court. Since federal laws govern intellectual property rights, if you file the case in state court, there is a chance that the state will transfer your case to federal court.

What Happens if a Court Rules in Your Favor in a Trademark Infringement Case?

If you prevail in your trademark infringement case, the court can provide one or more of several remedies to repair the damage to your business caused by the defendant’s trademark infringement:

• The court can issue an injunction ordering the defendant to stop using your trademark.
• The court can order the defendant to destroy all its imitations of your products or to give the imitation products to you.
• The court can order the defendant to pay damages to you in the amount of the financial losses your company suffered as a direct result of the defendant’s trademark infringement.
• The court can order the defendant to pay the attorneys’ fees you incurred in pursuing the trademark infringement lawsuit.

Is Parody Trademark Infringement?

One possible defense to an allegation of trademark infringement is that the defendant’s product is not an imitation of your product meant to convince customers that it is a genuine article but rather a parody that intends to say something new based on a recognizable catchphrase or media character. A famous example of parody is the songs of Weird Al Yankovic, which include melodies and arrangements virtually identical to those of copyrighted songs by popular artists, but with original, comedic lyrics. Weird Al always asks permission from the original artists before recording parodies of their songs. If he did not do this, he would have spent much more money on lawsuits than he ever earned in royalties. Case law has interpreted the First Amendment to categorize parody as protected speech.

It is possible for a defendant to claim that their content is a parody of yours instead of an imitation and that a reasonable person would know the difference. In practice, this defense only sometimes works. Trademark infringement cases are more complicated than they appear on the surface. If you are planning to take a competitor to court over copyright infringement, it is best to work with a business lawyer to prepare the best strategy and the best arguments.

Contact Marchand Law, LLP About Trademark Infringement

A business law attorney can help you resolve disputes related to trademark infringement by competitors and other matters related to intellectual property. Contact Marchand Law, LLP in Dallas, Texas, to discuss your case.