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Intellectual Property Center
Published in: Intellectual Property

Trademark Infringement & Unfair Competition

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Trademark Infringement & Unfair Competition: Protecting Your Brand in a Competitive Market

In today’s fast-paced business world, your brand is one of your most valuable assets. Protecting your brand from trademark infringement and unfair competition is crucial to protecting your companies goodwill and loyal customer base. Trademarks identify the origin or source of a good or service, allowing consumers to make informed decisions regarding quality. Trademarks also establish goodwill of businesses that are able to associate the quality of their good or service with their mark. In addition, trademarks ease the marketing and advertising processes as consumers learn to recognize certain trademarks in connection with the related good or service. Validly established trademarks are strongly protected by laws against infringement. By understanding these concepts and taking proactive steps, you can safeguard your business’s reputation and competitive edge.  Trademark Infringement & Unfair Competition

Understanding Trademark Infringement

Trademark infringement occurs when a company uses a trademark that is identical or confusingly similar to another’s registered trademark. The key factor here is the likelihood of confusion among consumers about the source or origin of goods or services.

In general, unfair competition law and trademark law protect both registered and unregistered trademarks but registered trademarks receive the most protection and are more likely to receive monetary awards for infringement. However, trademarks do not have to be officially “registered” to be protected.

The Lanham Act is the federal law on trademarks which offers protection to trademark owners against the false commercial exploitation of their trademarks by competitors. Under Section 1114 of the Lanham Act, federally registered trademark holders can take advantage of the traditional infringement action.  Under Section 1125 of the Lanham Act, any trademark owner may have a federal claim for unfair competition including False Designations of Origin, False Descriptions and Dilution of Trademarks.

Regardless of whether the trademark is federally registered, it is well established that a plaintiff claiming trademark infringement (or federal unfair competition) must demonstrate that the infringement caused a “likelihood of confusion.” In other words, trademark owners must show that the consuming public would be confused, misled or deceived as to the origin of the defendant’s goods or services caused by the use of their trademark (or a confusingly similar mark).

Likelihood of Confusion Factors

Factors that courts typically consider in determining whether there is a likelihood of confusion include:

  • The degree of similarity between the marks and of the goods and services;
  • The strength (or distinctiveness) of the plaintiff’s mark;
  • Any evidence of actual confusion by consumers;
  • The intent of the defendant in adopting its mark;
  • The physical proximity of the goods or services in the retail marketplace;
  • The degree of care likely to be exercised by the consumer; and
  • The likelihood of expansion of the product lines.

Key Elements of Trademark Infringement:

  • Use of a similar mark in commerce
  • Likelihood of consumer confusion
  • Potential damage to the trademark owner’s business

What is Unfair Competition?

Unfair competition is a broader concept that encompasses trademark infringement and other deceptive business practices. It’s essentially any conduct that goes against honest practices in industrial or commercial matters and includes False Designations of Origin, False Descriptions and Dilution of Trademarks.  Similar to an action for federally registered trademark infringement, section 1125 of the Lanham Act provides valid trademark owners without a registration a civil action against anyone who:

  • Uses any word, term, name, symbol or combination, any false designation of origin or false or misleading representation of fact;
  • In connection with the commercial advertising and promotion;
  • In interstate commerce;
  • In such a way that causes confusion, mistake or deception or misrepresents a nature, characteristics, qualities, or geographic origin of a good or service.

Common Examples of Unfair Competition:

  • Unregistered Trademark infringement
  • False advertising
  • Misappropriation of trade secrets
  • “Bait and switch” tactics
  • Unauthorized substitution of brands

The Curious Relationship Between Trademark Infringement and Unfair Competition

Interestingly, trademark infringement and unfair competition share many similarities:

  1. They both aim to protect businesses and consumers from deceptive practices.
  2. The underlying legal principles are often the same.
  3. Both can result in economic harm to businesses.

However, there’s a key difference: unfair competition doesn’t necessarily require the existence of a registered trademark. It can apply to unregistered marks or other forms of business identifiers.

Why This Matters for Your Business

Understanding these concepts is crucial for:

  1. Protecting Your Brand: Knowing your rights helps you defend against infringers.
  2. Avoiding Legal Pitfalls: Ensure your business practices don’t inadvertently infringe on others’ rights.
  3. Strategic Decision Making: Inform your branding and marketing strategies to stay compliant.

Legal Remedies and Protection

If you believe your trademark is being infringed or you’re facing unfair competition, several legal remedies are available:

  1. Cease and desist letters
  2. Injunctions to stop the infringing activity
  3. Monetary damages to compensate for losses
  4. In some cases, attorney’s fees and treble damages may be awarded (for registered marks or counterfeit marks)

Preventive Measures

To protect your business:

  1. Register your trademarks
  2. Conduct regular trademark searches
  3. Monitor the market for potential infringers
  4. Educate your team about fair business practices

Conclusion

Remember, the law in this area can be complex and fact-specific. If you’re facing issues related to trademark infringement or unfair competition, it’s always best to contact one of our experienced trademark attorneys. We specialize in helping businesses navigate these complex issues. Contact us today to learn how we can help protect your brand and ensure fair competition in your industry.