Is Your Trademark Infringed? Lawyer Advice

Trademark infringement is one of the most serious intellectual property violations a business can face. Whether you’ve discovered a competitor using a mark similar to yours or you’re concerned about potential liability, understanding your legal rights and options is essential. This comprehensive guide examines the key factors courts consider when determining trademark infringement, the remedies available to you, and the critical steps you should take if you believe your trademark rights have been violated.

Your trademark represents far more than a logo or name—it embodies your brand’s reputation, customer goodwill, and years of investment. When someone else uses a confusingly similar mark, the consequences can be devastating, ranging from lost sales and brand dilution to customer confusion and reputational damage. Knowing whether you have a valid infringement claim and how to protect your rights requires understanding both the legal standards and practical considerations involved in trademark disputes.

Understanding Trademark Infringement

Trademark infringement occurs when someone uses a mark in commerce that is identical or confusingly similar to your registered or unregistered trademark, in a way that is likely to cause confusion about the source, sponsorship, or affiliation of goods or services. Unlike patents, which protect inventions for a limited time, trademark rights can last indefinitely as long as the mark remains in use and is properly maintained.

The foundation of trademark law rests on protecting consumers from deception and protecting businesses from unfair competition. When a company uses your trademark or something substantially similar without authorization, they’re not just copying your mark—they’re attempting to trade on the goodwill and reputation you’ve built. This creates confusion in the marketplace and can directly harm your business interests.

It’s important to note that trademark protection applies to words, phrases, symbols, designs, colors, sounds, and even product shapes or configurations. Your trademark doesn’t need to be registered with the U.S. Patent and Trademark Office (USPTO) to receive some protection under common law, but federal registration significantly strengthens your position in any infringement dispute and provides important procedural advantages.

If you’re pursuing a career in intellectual property law, understanding trademark disputes is crucial. Many attorneys who work in this field have graduated from T14 Law Schools or other top-tier institutions where they studied trademark law extensively. The field of intellectual property litigation is also known for offering competitive compensation through Big Law Salary Scale positions at major firms specializing in IP disputes.

Key Legal Standards for Infringement Claims

The legal standards for trademark infringement differ slightly depending on whether you’re pursuing a claim under the Lanham Act (federal law) or state common law. However, the core analysis remains consistent across jurisdictions.

Under the Lanham Act, 15 U.S.C. § 1114, the owner of a registered mark may sue for infringement if another party uses the mark or a confusingly similar mark without authorization in connection with the sale, offering for sale, distribution, or advertising of goods or services. The critical element is whether the use is likely to cause confusion regarding the source, sponsorship, or affiliation of the goods or services.

For unregistered marks, you can still pursue infringement claims under common law and the Lanham Act’s Section 43(a), which protects unregistered marks from use that is likely to cause confusion. However, your burden of proof may be slightly higher, and you won’t have the statutory presumptions of validity and ownership that come with federal registration.

The strength of your trademark also matters significantly in infringement analysis. Strong marks—those that are arbitrary, fanciful, or distinctive in their market—receive broader protection than weak or merely descriptive marks. A mark like Apple for computers receives much broader protection than a mark like Fresh for juice, which is merely descriptive.

The Likelihood of Confusion Test

The cornerstone of any trademark infringement analysis is the “likelihood of confusion” standard. Courts don’t require proof that actual confusion has occurred; they only need to determine whether confusion is likely. This is a fact-intensive analysis that considers multiple factors.

The most commonly applied test comes from the Polaroid case and its progeny. Courts typically examine: the strength of your mark; the similarity of the marks in appearance, sound, and meaning; the similarity of the goods or services; the sophistication of consumers; actual instances of confusion if any exist; the intent of the defendant in choosing the mark; and the likelihood that you’ll expand into the market where the defendant operates.

Similarity of the marks is judged from the perspective of the ordinary consumer, not side-by-side comparison. Would a typical consumer encountering both marks in the marketplace be likely to believe they come from the same source? Courts also consider the context in which the marks are used. A mark used in a completely different industry might not create confusion, whereas the same mark in a related industry could be highly problematic.

The sophistication level of consumers matters too. If your customers are highly educated professionals making expensive purchases, they’re less likely to be confused than average consumers buying inexpensive goods. Similarly, if the defendant used the mark with clear intent to deceive—what courts call “willful infringement”—this weighs heavily in your favor and can result in enhanced damages.

Actual confusion evidence is particularly powerful. If you can show that real customers have been confused about the source of products or services, this substantially strengthens your infringement claim. Such evidence might include customer complaints, testimonies, or evidence of diverted sales.

Evidence You’ll Need to Prove Infringement

To successfully prove trademark infringement, you’ll need to establish several key elements with competent evidence. First, you must prove that you have valid rights in your trademark. This typically involves demonstrating that you used the mark in commerce before the defendant and that your mark is either federally registered or has acquired secondary meaning in the marketplace.

Federal registration from the USPTO provides powerful evidence of your rights. It creates a presumption of your ownership of the mark and your exclusive right to use it nationwide for the goods or services listed in your registration. If your mark isn’t federally registered, you’ll need evidence showing continuous use in commerce, the date you first used it, and evidence of secondary meaning—proof that consumers associate the mark with your business.

Second, you need evidence of the defendant’s use of a confusingly similar mark. This might include product packaging, advertising materials, website screenshots, social media posts, or actual products bearing the disputed mark. The evidence should show where and how the defendant is using the mark and in connection with what goods or services.

Third, gather evidence supporting likelihood of confusion. This includes the visual and phonetic similarity of the marks, evidence of actual confusion from customers, testimony about the strength of your mark, and analysis of the similarity between the goods or services. If you can obtain customer declarations or deposition testimony from people who were confused, this is exceptionally valuable.

Documentation of your brand’s reputation and market position is also important. This might include sales figures, advertising expenditures, media coverage, awards, and evidence of the goodwill associated with your mark. The stronger your brand’s reputation, the broader the protection courts typically afford you.

If the defendant acted willfully—meaning they knew about your mark and used it anyway—gather evidence of this. This might include cease-and-desist letters you sent, evidence that the defendant visited your website or saw your marketing, or communications showing the defendant’s knowledge of your rights.

Available Remedies and Damages

If you successfully prove trademark infringement, several remedies are available. The most common is an injunction—a court order prohibiting the defendant from continuing to use the infringing mark. Courts often grant preliminary injunctions early in litigation if you can show a likelihood of success on the merits and irreparable harm from continued infringement.

Monetary damages are also available. You can recover either your actual damages (lost profits you can prove resulted from the infringement) or the defendant’s profits attributable to the infringing use. The defendant must account for all profits they earned using the infringing mark, though you’re responsible for proving the amount.

The Lanham Act also allows for “enhanced damages” in cases of willful infringement. If a defendant knowingly and deliberately infringed your trademark, a court may award damages up to three times the actual amount. This treble damages provision is a powerful deterrent and makes willful infringement cases particularly valuable.

You can also recover your attorney’s fees and costs in exceptional cases. While not available in every case, courts award fees when the infringement is willful or the defendant’s conduct was particularly egregious. This makes the cost of defending your rights more manageable.

In cases involving counterfeit goods—deliberate, identical copies of registered marks—the Lanham Act provides for statutory damages ranging from $1,000 to $200,000 per counterfeit mark per type of goods or services, or up to $2 million per mark if the infringement is willful. You don’t need to prove actual damages or profits in counterfeiting cases.

Steps to Take If You Suspect Infringement

If you discover what you believe is trademark infringement, taking prompt action is critical. Delay can weaken your position and might even result in loss of rights under some circumstances.

Document Everything: Take screenshots of websites, photograph products and packaging, save advertising materials, and record dates and times of discovery. This documentation will be invaluable if litigation becomes necessary.

Gather Evidence of Confusion: If you receive customer inquiries about the infringing use or hear from customers who were confused, document these instances carefully. This evidence is worth its weight in gold in infringement litigation.

Investigate the Defendant: Learn everything you can about who is using the infringing mark. Where are they located? What is their business model? How long have they been operating? Are they established or just starting? This information helps you evaluate the strength of your case and the best enforcement strategy.

Send a Cease-and-Desist Letter: Consult with an intellectual property attorney about sending a formal demand letter. This puts the defendant on notice of your rights and can be important evidence if you later pursue litigation. A well-crafted cease-and-desist letter often resolves disputes without litigation.

Consider Administrative Remedies: If the infringing mark is registered with the USPTO, you might file a cancellation petition or opposition. The USPTO’s Trademark Trial and Appeal Board (TTAB) offers a faster, less expensive alternative to federal court litigation in some cases.

Evaluate Your Registration: If your trademark isn’t federally registered, consult an attorney about filing an application. Federal registration provides significant advantages in enforcement and litigation.

Consult an IP Attorney: Before taking major action, speak with an experienced trademark attorney. They can evaluate the strength of your claim, advise you on the best enforcement strategy, and represent you in negotiations or litigation. Many attorneys who specialize in this area have studied at Best Law Schools in the US with strong intellectual property programs.

Defenses to Infringement Claims

Understanding potential defenses to infringement claims is important even if you believe your case is strong. Defendants have several possible responses to trademark infringement allegations.

Lack of Likelihood of Confusion: The defendant’s primary defense is typically that no likelihood of confusion exists. They might argue that the marks are sufficiently different, that the goods or services are sufficiently distinct, or that consumers wouldn’t reasonably be confused about the source.

Descriptive Use or Fair Use: If the defendant is using the mark descriptively or in a fair use manner—for example, using your mark to describe their own goods or in comparative advertising—this can be a complete defense. However, this defense has limitations and doesn’t apply to all situations.

Genericness: If your mark has become generic—meaning consumers view it as a common name for the product category rather than as a brand identifier—it receives no protection. Famous examples include “escalator” and “thermos,” which were once trademarks.

Abandonment: If you haven’t used your mark in commerce for a continuous period of three years or more without intent to resume use, the defendant might argue you’ve abandoned the mark. Proper maintenance and continued use prevent this defense.

Laches or Estoppel: If you knew about the infringing use but unreasonably delayed in taking action, the defendant might argue that you’ve waived your rights through laches (unreasonable delay) or estoppel.

Invalidity of Your Mark: The defendant might challenge the validity of your trademark, arguing it was never properly registered or that it’s merely descriptive or deceptive.

FAQ

How is trademark infringement different from patent or copyright infringement?

Trademark, patent, and copyright protection serve different purposes and have different requirements. Patents protect inventions for a limited period (typically 20 years). Copyrights protect original works of authorship for the life of the author plus 70 years. Trademarks protect brand identifiers and can last indefinitely with proper maintenance. The legal standards, remedies, and enforcement procedures differ significantly among these three forms of intellectual property protection.

Do I need a federally registered trademark to pursue an infringement claim?

No, you can pursue infringement claims for unregistered marks under common law and the Lanham Act Section 43(a). However, federal registration provides significant advantages, including a presumption of validity, nationwide protection, and the ability to recover enhanced damages and attorney’s fees in exceptional cases. Registration should be a priority if you haven’t already done so.

What is the difference between trademark infringement and dilution?

Trademark infringement requires showing a likelihood of confusion about the source of goods or services. Trademark dilution, under the Federal Trademark Dilution Act, protects famous marks from uses that blur the mark’s distinctiveness or tarnish its reputation, even without any likelihood of confusion. Dilution claims are available only for marks that have achieved fame.

How long does trademark infringement litigation typically take?

Trademark litigation timelines vary considerably depending on case complexity, whether the parties pursue settlement negotiations, and court schedules. Some cases settle within months; others may take two to five years or longer if they proceed through trial and appeals. Preliminary injunction motions, which can be resolved relatively quickly, often provide important interim relief.

Can I recover damages for trademark infringement before my mark was federally registered?

Yes, you can recover damages for infringement of unregistered marks under the Lanham Act Section 43(a). However, you must prove the elements of infringement, and damages recovery may be more challenging without the presumptions that come with federal registration. The date of first use in commerce, not the date of registration, typically determines when damages can begin to accrue.

What should I do if I receive a cease-and-desist letter accusing me of trademark infringement?

Don’t ignore it. Consult immediately with an intellectual property attorney. They can evaluate whether the accusation has merit, advise you on your options, and respond appropriately. Responding quickly and thoughtfully can sometimes resolve disputes without litigation. Your attorney might file a declaratory judgment action if you believe the accusation is baseless.

Are there alternative dispute resolution options for trademark disputes?

Yes. Many trademark disputes are resolved through negotiation and settlement. The parties might also pursue mediation or arbitration, which can be faster and less expensive than federal court litigation. The World Intellectual Property Organization (WIPO) offers arbitration and mediation services for international trademark disputes. The United States Patent and Trademark Office also provides resources for trademark dispute resolution.