Trademark Law Explained for Small Businesses

Trademark Law Explained for Small Businesses


Trademarks are the rights to use that are registered for symbols, words or phrases that are used to identify a particular seller or manufacturer’s product and help to create a distinction from other products in the market. 


For example, the word Coca-Cola creates a distinction from Pepsi, which are two registered trademarks of the same type of brown coloured cola beverage. Trademark law also covers service marks that are used to describe a particular service rather than a product for example the world renowned courier services DHL or UPS.


Under certain circumstances, trademark rights are also extended beyond symbols, word and phrases and thus include other aspects of a product such as the design, colouring, shape and packaging. These features fall within the term ‘trade dress’ and are given protection by the trademark law if the consumers of the product associate them with the particular features of the manufacturer and not that of the product itself. Competition and functionality advantage can never be given aid by trademark law and is generally covered by patent rights. 


If a product owner has the rights of a particular trademark, than they sue in the court of law if any other party is infringing the trademark. The accepted standard for trademark infringement is ‘likelihood of confusion.’ This means that the product accused of trademark infringement is likely to cause confusion to the consumer base as to the source of the goods or the approval of the goods.

A person may wish to purchase a particular product and due to the confusion in the name, design or packaging, instead purchases the other product. The courts, while deciding whether confusion is caused between two or more products will consider a number of factors such as the similarity of the marks, the strength of the mark, the similarity between market channels, actual evidence of confusion arising to the consumers, the proximity of the goods, and the intention of the defendant in making that product the way it is.


Apart from an action for infringement, the owners of trademarks can also sue in the court of law under the provision of trademark dilution. This can only be done in case a trademark is famous. The courts, in such cases, will look for different factors to constitute whether the trademark is famous or not. The factors would include the duration and extension of use, the geographical extent of the market of the product, the channels acquired for trade of the product, the degree of acquired or inherent distinctiveness, the amount of publicity and advertising, the products recognition in the market, the registration of the trademark and any similarities with the trademarks of other products in the market.


Passing off is another cause of action under trademark law. It occurs when someone tries to sell their product as the original trademark owner’s product. This is done by creating confusion by slight changes to the original name, design and packing of the product and targeting the same consumer markets. Reverse passing off also occurs; when someone uses the original trademarked product and sells it under their own name, most likely to gain a false reputation in the market.

Trademark Attorney, Trademark Lawyer

WHAT DO TRADEMARK LAWYERS DO?

WHAT DO TRADEMARK LAWYERS DO?

A trademark lawyer is a legal professional who is qualified to act in matters involving trademark law and practice and provide legal advice on trademarks and design matters.After completing a seven years education, which includes 4 years of graduation and 3 years of law specialization.

TRADEMARK: Trademarks are a company’s legal representation which is authorized to them and registered at Trademark Electronic Search System (TESS)

When a person needs to file their trademark application, the attorney’s are much way familiar with these matters so they can file it on the client’s behalf. Before ever filing a trademark application, a trademark attorney can conduct a more comprehensive search for potential problems with your use of a proposed mark than you will be able to conduct in TESS.  The attorney then can counsel you regarding use of the mark, recommend whether to file a trademark application, and advise you on your likelihood of success in the registration process.        
                                        

The filing of a trademark application begins a legal proceeding having many legal requirements and strict time deadlines.  Not all applied-for trademarks register, and filing fees are not refunded.  Whether you ultimately proceed on your own behalf or a trademark attorney represents you, all substantive and procedural requirements of the Trademark Act and Trademark Rules of Procedure must be met.  

BENEFITS OF HIRING A TRADEMARK LAWYER

Some benefits of hiring a trademark lawyer are:

·        Saves time

·        Saves money

·        A common person with no law education cannot understand all the complications hidden in the law matters

However, trademark registration applications are a very different story because they’re more complex, less straightforward, relatively expensive, and potentially time-consuming. A knowledgeable trademark attorney will know how to respond to a refusal or an opposition in a timely manner. Even the most astute entrepreneur would not likely be familiar enough with the trademark registration process to efficiently respond to a refusal or an opposition.

A perfect trademark registration application formerly took about 18 months. The USPTO has become more automated and less paper-dependent over the last ten years, so its processing times have become shorter. The speediest trademark registration application we know of took about seven months. The longest took almost three years.

The main task of trademark lawyers is to help their clients to protect their rights. 

This usually means helping them to apply for a patent or a copyright or whatever other protection is appropriate. In order to do this it is necessary to do a search to see if something similar has already been protected, if it has an IP lawyer may be able to offer advice on how to get around this.

Another major aspect of the work of an IP lawyer is to help companies to avoid infringing on a patent that somebody else has. This is actually fairly common when it comes to patents as many times when a company designs something that find that somebody has already got a similar patent. It may be possible to get around this by making your product different enough; an IP attorney can help the company to determine if they can do this and how.

WHAT ELSE TRADEMARK LAWYER CAN DO TO HELP?

A trademark lawyer represents and protects the client’s right from start till the end. After the trademark registration process has completed and a person gets all the right over the trademark, in case the trademark gets stolen by someone other than your lawyer will guide you to process the case and doing all necessary law work.

Trademark Attorney, Trademark Lawyer

Trademark Infringement - What It Is And How To Protect Your Trademarks

Trademark Infringement - What It Is And How To Protect Your Trademarks

Business running can be tricky, especially with so many people wanting to ride in your glory when you have just started making it big. You will find situations where other people use your trademark or service mark for their goods, thus robbing you of your value in the market. 


This is what is known as trademark infringement and it is by law an offense. The unauthorized use of service mark or trademark relating to competing services and goods can be costly since the customers end up confusing between products. An infringement lawsuit is applicable in such a case. The owner of the trademark can file a petition so that action can be taken against the infringer in a federal or state court depending on the protection it is under.


Case determination 

Once you have filed a trademark infringement lawsuit, it will be upon the court to determine the existence of confusion. It will look at the meaning, look and sound of the two fighting marks to make a conclusion. The court also takes the time to look at how the two products are related to determine if the infringer indeed tried to co promise the complainant. Mark distinctiveness will also play a role with the major categories to be handled, including arbitrary marks, descriptive marks, generic marks and suggestive marks. 

Generic marks will rarely gain trademark protection since they cover general classes of service and products but descriptive marks gain protection although they require additional proof of trademark distinction by the public. Arbitrary and suggestive marks on the other hand gain highest distinction levels. 

The legal consequences

On determining that indeed there has been trademark infringement, the remedies that can be offered by the court include monetary damages covering attorney fees and lost profits, court injunction for the infringer to stop all usage of the trademark and possibilities of punitive damages in case the court consider infringer actions outrageous. 

Getting help 

Even though you have protected your trademark, there are still risks that third parties might end up infringing on your legal rights. It is an act that can be dangerous for any business since customers can easily be diverted to the competitor’s products. Fortunately, something can always be done as soon as you realize that there has been an infringement. You are protected by law and with the help of a good, qualified trademark attorney; you should be in a position to defend the legal rights that you have. 


When choosing an attorney, remember to consider the experience in trademark 
infringement as well as the success stories that he has behind his representation. When there is experience and know-how, you can be sure that you will get justice from the lawsuit. Even though after a win, the defendant might be required to pay for losses and also the attorney fees you have incurred following the lawsuit, it is still of importance to find and consult with one or more trademark lawyers that match your unique trademark law needs and budget for hiring the right legal help. It will give you soft landing even when a lawsuit is not successful. 


Trademark infringement can be dangerous for any business for any given product. It can compromise the quality and reputation of the brand and the results can be damaging. A highly trained trademark lawyer can greatly help you fight for your legal rights successfully. 

Trademark Attorney, Trademark Lawyer