Trademark Infringement

Lia Kopin-Green
November 3, 2022

What is Trademark Infringement?

According to the United States Patent and Trademark Office (USPTO), trademark infringement is defined as 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 source of the goods and/or services.” The Lanham Act, which is a federal statute, governs trademark law and stipulates the requirements for trademark infringement to take place. 

A trademark owner who believes that someone is using their trademark in an unauthorized manner may file a civil lawsuit for trademark infringement in either state or federal court, depending on the circumstances.

Key Takeaways

  • Trademark infringement is defined by the USPTO as 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 source of the goods and/or services.” 
  • The unauthorized use of a trademark must cause confusion in order to be considered an infringement. 
  • Trademark infringement cases are civil matters that take place in either state or federal court.

Trademark Infringement Suits

If you have discovered that someone else is using your trademark without your explicit authorization, you may consider filing a trademark infringement lawsuit. Before doing so, it is often advised to send a cease and desist letter to the infringer. This letter, which is a written notice demanding an immediate stop to illegal activity, warns the offender that legal action may be taken against them if they continue their misconduct. By using a cease and desist letter, you may be able to avoid bringing formal proceedings for trademark infringement that would cost you a significant amount of money, time and effort.

Nonetheless, it is important to keep in mind that even when cease and desist letters are sent, they are not always acknowledged. If the offender failed to respond to a cease and desist letter, you may choose to move forward with a civil lawsuit. Your attorney will help you decide whether an infringement suit is relevant in your circumstances. 

Proving Trademark Infringement

The conditions for proving trademark infringement differ slightly depending on whether the trademark is federally registered or not. To prove that someone is infringing upon a registered trademark, the plaintiff must establish registration of the mark. However, if the mark is not registered, the plaintiff will be forced to prove that they have used the mark in commerce to designate particular goods and services in the past.

The plaintiff must also provide evidence of the unauthorized use of the mark. Lastly, he or she should explain why the mark causes confusion with existing marks or is likely to cause confusion with existing marks.

Bottom Line

The issue of trademark infringement should not be handled alone. It is a serious offense that requires the expertise of professional intellectual property attorneys. If you need advice on how to prevent trademark infringement on your brand, or if you have been faced with a trademark infringement claim, contact one of our intellectual property lawyers as soon as possible.

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