It is hard work to brainstorm and design a name and logo for your brand. If another business starts using your trademark what can you do?
Trademark law can be confusing to startups and small businesses (and even large businesses). Here are a few steps to try and make the process or protecting your brand a little bit easier.
Determine if there is actually trademark infringement
Before jumping to a lawsuit, you need to determine if a problem actually exists.
Trademark infringement occurs only when consumers will likely be confused by the dual use of the trademark and whether the mark is being used for the same/similar goods and services.
Additionally, you need to consider the regions where your business and the other business are selling your goods or services. If you operate a business Utah and someone opens a similarly named business in Hawaii, this likely isn’t considered infringement because customers in Hawaii probably won’t mix up their local store with one in Utah. Note, e-commerce and the internet are shrinking geographic barriers and courts may consider how someone’s online presence can impact another’s business.
Additionally, business names can infringe on one another even if they aren’t identical. Courts often consider “sight, sound and meaning” when determining if two marks are similar.
If you believe that the other business name is being used for competing goods and services, customers are likely being confused by the two names, and the other name is being used in your same geographic region, then you should take action.
First, contact a trademark attorney in trademark law, to help you strategy on the next steps:
Cease and Desist Letter
Trademark issues typically begin by sending a cease-and-desist letter to the infringing business and demanding that they stop using your mark.
If the alleged infringer continues to use your trademark after receiving your cease and desist letter, then the next step is to file a lawsuit to prevent the competitor to use the mark and/or to get money damages.
Challenge Domain Name
If you are a trademark holder and you can challenge someone’s domain name by filing a complaint with an ICANN dispute resolution provider. ICANN is an international organization in charge of domain name registrations.
Make sure to register your trademark
While you can rely on common law rights to a trademark, but you will be far more successful if you are actively using the mark in commerce and have filed for federal trademark protection with the USPTO. This is the most important step in trademark protection.
Too often, startups and small-business owners don’t think about trademarks until it is too late and it becomes a fight over who owns the name and who was using it first. By getting a registered trademark with the USPTO you can protect your rights and make enforcement much easier.
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