What is infringement and how do you know if you are guilty of it?

One of a business owner’s worst nightmares is to receive a “Cease and Desist” letter one day.

If you receive one, it could mean you have to start from scratch and rebrand your business!

However, one of the questions we get asked by our clients at Indie Law is, how do I know if I am infringing on another brand?

In this blog post, we will explain what trademark infringement is, how know if you are infringing, how to avoid it, and what do if the tables are turned and someone infringes on your brand!

What is trademark infringement?

In general, an infringement means breaking a rule or the law.

In the context of the trademark world, infringement means the unauthorized use of someone else’s trademark — or the unauthorized use of a confusingly similar trademark — in association with similar goods and services.

When may I be committing trademark infringement?

Based on the above definition, trademark infringement can occur in one of two different ways.

One way to commit trademark infringement is if you are using another company’s trademark in an unauthorized way. Yes, if you use or reference another brand’s trademark without the proper permissions to do so, then you may be accused of trademark infringement. To avoid this risk, you’ll want to have proper permissions and licenses in place to use other brands’ trademarks in your marketing or resources. That said, we will not get into trademark licenses in this blog post.
One, you are using the image in an unauthorized manner, yes there are cases where

The second kind of infringement is more common. Here, your own brand is identical or too similar to another brand. Whether it’s accidental or intentional, that doesn’t change the fact that your brand may cause confusion and misleading consumers.
It is important to note that, when it comes to trademarks, the central focus is the consumer. When the examining attorneys from the United States Patent and Trademark Office (the USPTO) review trademark applications, one of their primary concerns is whether there is a potential likelihood of confusion.

Avoiding Accidental Infringement

If you’re like the businesses that Indie Law works with, you would never want to intentionally infringe on another brand’s trademarks. Nevertheless, even if infringement is accidental, that cannot be used as a legal defense to help your case.

To avoid accidentally infringing on another brand, we recommend that you do a thorough initial research to find out what is the status of the trademark you would like to use. And yes, we can help you with that! Trust us, you don’t want to become an accidental infringer.

I saw someone using my trademark (or something very similar to it) without authorization! What can I do?

First, know that it’s totally natural and okay to have your moment of annoyance and frustration! Dealing with copycats and infringers is one of the more difficult parts of being a business owner.

Second, it’s time to lawyer up. In order for you to proceed as effectively as possible, you will want the supervision and guidance of a lawyer. Your legal team can verify that infringement is in fact being committed, can help you put facts over feelings as you protect your brand, and will tell you what best next steps to take.

It is important to consider that the way you decide to proceed to enforce your rights is a strategic business decision. This is also why you need to have a strong legal team to ensure that your reputation remains intact.

Let Indie Law be that team! Schedule your a free legal consultation with us today.