A recent study conducted by Compumark, a leading research agency, in 2016 revealed that eighty percent of C-level executives report that trademark infringement (TMI) is on the rise but only 20 percent of these executives have plans in place to actively watch more than three-quarters of their marks. The study also revealed that litigation in the field is particularly common with more than half of the executives indicating that their organization had initiated legal action against third parties who had infringed on their brand.
The number of trademarks being filed is expected to increase which will likely result in increased trademark litigation. As a result, it is a particularly wise idea for companies to make sure that their trademark is properly secured. Fortunately, knowledgeable legal counsel can often prove to be beneficial in securing a trademark.
TMI often results in profit losses for a company, so TMI must be viewed as is a very serious event. If you are a trademark holder who has experience trademark infringement, it is often a wise idea to retain the assistance of a seasoned trademark or intellectual property attorney.
Elements of Trademark Infringement
To demonstrate that trademark confusion has occurred under the appropriate federal law, courts analyze the existence of eight factors. An individual or business alleging trademark infringement need not prove all of the following eight elements but these factors will prove influential:
- The actual amount of confusion that has occurred between the marks.
- The alleged infringer’s reasons for infringing on the mark.
- The prior owner’s potential expansion into the domain of the other.
- The proximity of the products or companies that use the mark.
- The quality of the alleged infringer’s product.
- The similarity of uses between the two trademarks.
- The sophisticated of consumers who might be confused by the mark.
- The strength of the mark that has been infringed.
Steps to Avoid Being Accused of Infringement
To avoid costly litigation, trademark holders should remember to follow some important advice in registering a mark. This advice includes the following:
- Perform Research. Many states offer tools for individuals to perform searches of business names. When searching for similar business names, individuals should always remember to search for similarly sounding and similarly spelled business names as well as the use of any synonyms. If mark holders plan on doing business in other states, it is also often a good idea to perform similar searches in the states where an individual plans to do business.
- Stay Away from Misleading Trademarks. Infringement actions are often only successful if a trademark is found to be intentionally misleading. As a result, mark holders should analyze the intention behind the decision to select a verbal mark.
- When In Doubt, Consult with an Attorney. Many individuals and companies benefit from talking to an experienced lawyer before deciding on a trademark. A skilled trademark or intellectual property attorney can help an individual select a “safe” trademark as well as introduce ideas about how to safeguard the mark from potential infringement.
Why You Should Contact a Top Trademark Lawyer
Trademark law often involves very costly issues related to one’s business. The legal counsel at Whitcomb, Selinsky, McAuliffe, PC is dedicated to making sure your case resolves in a positive manner.
Contact our firm today calling our Denver office at (303) 534-1958 by reaching us through our online form.