What happens if somebody else uses your trademark?

What happens if somebody else uses your trademark?

If you went time planning and designing a name, logo, colour scheme and for your brand, you may come across “trademark infringement” but the real question is: How can you prevent anyone else from taking it?

It can be a long, painful process to defend it, trademark law can be very confusing, and it can even baffle some of the brainiest business owners, all over the world!

There are many tips, tricks and tutorials available to help prevent other company owners infringing your trademark, but it can be hard to actually do something about it.

Is it actually “trademark infringement?”

You need to essentially clarify whether or not it’s actually a problem and whether or not it needs to be dealt with; otherwise, you could just be wasting time and money on something that wasn’t technically a dilemma in the first place.

First of all, was the use of your trademark a coincidence? Or was it used to compete against your goods and services? Trademark infringement can often be mistaken, because if a trademark is supposedly “infringing” somebody else’s but the products they’re selling are totally different, customers wouldn’t mistake them for one another and confuse themselves because they have familiar branding.

For example: Delta Airlines and Delta Faucets are both in use, but it’s unlikely that someone who is trying to buy a plane ticket will end up buying a tap! They’re selling different products on the market and it isn’t competing against one another when it comes to retailing their produce. So ask yourself will your customers be confused.

Trademark infringement can occur even if the brands are not actually identical. When courts examine whether or not it classes as “infringement” they take into account: the sight, the sound and the whole concept of the marks. For example if you name your shoe brand “sketcheez” or NIKEY trademark infringement will still be present!

When should I take action?

Usually, a letter is written to the business infringing your trademark, this is known as a “cease-and-desist letter”. This letter should demand the infringing owner(s) to stop using your mark; this should be reviewed by your attorney before sending it.

If the suspected infringer still continues to use your trademark after receiving the letter then you may have to consider court action.

Filing a trademark in the first place

It is sensible to apply for your trademark as this is the best way to secure your brand. Small businesses often think that leaving it until later will be okay because they think it’s nothing to worry about, but if another business comes along and “infringes” it and becomes more successful and competitive, it’s harder for them to claim the rights to it. Hence why you’re putting yourself in the best possible situation if you apply for trademark protection as soon as possible, the earlier the better, no matter how small or large your business is.

How do you obtain rights in trademark?

Rights to a trademark can be acquired in two ways: you have to be the first to use the mark in the industry and build up unregistered rights, and the other way in which you have to register the mark with your Intellectual Property office.

When setting up a business you need to understand how to best protect your company branding when developing and promoting your trademark. A trademark must be exclusive and unique, especially when it’s on the market competing against other brandings, sounds, logos, colour schemes Your trademark should be distinguished from other other brands. For example: Coca Cola, have an original, classic logo, script and colour scheme to advertise their beverage to separate their branding from Pepsi, despite the fact they are comparatively alike.

If you register you trademark, it allows you to have a monopoly over that name and protect your brand/products from being misused and/or used for the same goods and services they provide. 

Nancy Pope Yr 10 pupil Regents School Southampton