11 Feb Trademark Oversight: Imitation is not Flattering

It is not an easy task to build a business and gain recognition in today’s growing market. When that kind of time and money is put into a business, it is important to protect that investment. This can be done through the filing of a trademark. A trademark is a word, logo, or name that identifies the source of the products or services. A trademark provides businesses with the exclusive use of the mark, which helps to ensure consumers may not be confused by a competing use of the mark, as well as the ability to protect and build a brand identity. Thus, the legal protection of a trademark serves both to protect the public from confusion but also to protect the owners from losing their market.

The common law always has recognized that the one goal of trademark law is to prevent mistake, deception, and confusion with regards to the origin of goods. Protection of the public is thus one central feature of common law trademark. An immediate byproduct of prevention of confusion and protection of the public is that businesses that have adopted trademarks acquire a means of protecting their goodwill. Thus, trademark law tends to protect both the sellers and purchasers.

It should be no surprise then, that there are serious penalties for infringement of trademarks. According to the United States Patent and Trademark Office (USPTO), “Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the sources of the goods and/or services.” If the infringement is proven, the USPTO cites the following possible remedies available to the owner of the Trademark:

• A court order (injunction) that the defendant cease and desist use of the mark;

• An order requiring the destruction or forfeiture of infringing articles;

• Monetary relief, including defendant’s profits, any damages sustained by the plaintiff, and the costs of the action; and

• An order that the defendant, in certain cases, pay the plaintiff’s attorneys’ fees.

These remedies appeal to many firms that solely focus on finding infringers, who are intentionally or even unintentionally using a protected trademark in commerce. Particularly for small businesses, this small oversight can be fatal if discovered by such a firm.

The moral is imitation is not flattering when it concerns trademark law. One tip to consider before you form a formal entity and engage in commerce is to have an attorney conduct a trademark search to determine if you will be infringing on any current trademarks. Better yet, during the process of forming a formal entity, trademark your business name. It is worth the investment to protect your business and establish your market.

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