Breach of Trademark Effects

By Victoria McGrath

A trademark is a brand name -- and includes any word, symbol, device, or combination thereof that distinguishes the goods or services of one owner in the marketplace. You hold exclusive rights to a trademark once you establish it in the marketplace or register it with the trademark office. Once you register your trademark, only you have the authority to use it to identify your product. If another seller uses your trademark, that person infringes on your trademark rights and breaches the trademark restrictions; you can then take legal action.

A trademark is a brand name -- and includes any word, symbol, device, or combination thereof that distinguishes the goods or services of one owner in the marketplace. You hold exclusive rights to a trademark once you establish it in the marketplace or register it with the trademark office. Once you register your trademark, only you have the authority to use it to identify your product. If another seller uses your trademark, that person infringes on your trademark rights and breaches the trademark restrictions; you can then take legal action.

Infringement on Trademark Rights

Without federal registration, you must use your mark in a territory to have protection in that territory. Federal registration guarantees exclusive ownership rights throughout the United States. You can also register your trademark internationally. When an unauthorized third party infringes on a trademark owner’s exclusive right and use of a trademark such as by using a similar mark, it may confuse or mislead consumers as to who is the source of the goods and services. This is the case with counterfeit products.

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Breach of Restrictions

An infringement on your exclusive ownership rights of a trademark means that the other individual violated trademark law. Trademark law gives trademark owners exclusive rights to use specific marks to protect both the product owner and the consumer. An infringement of trademark rights occurs when another individual breaches the restrictions and uses the trademark illegally without your permission. Trademark law provides the greatest protection for trademarks that are distinctive. For example, an original word like "Kodak" is easily protected, whereas a brand such as "Best Image" is more difficult to protect. Trademark law also protects logos like the Apple logo, or a descriptive word that actually describes a product such as, "Band-Aid," which is the trademarked name for bandages sold by Johnson & Johnson.

Effects of Infringement

The breach of restrictions and effects of the infringement result in general confusion of the public. When someone infringes on your trademark, you no longer control the use of the mark to identify your products or services. The other person illegally takes that exclusive control out of your hands. Your trademark no longer identifies only the products you sell in commerce; it also identifies the counterfeit products. The unauthorized use of the trademark can result in loss of revenue for the authentic trademark owner, as well as a loss of expected quality and dependability by the consumer who believes he is buying a certain brand for its excellent reputation.

Legal Action

Although the United States Patent and Trademark Office oversees trademark registration, the trademark owner is ultimately responsible to protect his exclusive ownership rights from infringement by others. In other words, you need to keep a watchful eye on any unauthorized use of your trademark in association with other products. You should be prepared to send a cease and desist letter to stop any unauthorized use of your trademark. You can file a claim for damages, likelihood of confusion and dilution of your trademark through a civil action, in federal court. You may have an action in state court over applicable state law violations.

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Logo & Trademark Rules in the US

References

Related articles

What Is a Trademark's Duration?

A trademark identifies a particular manufacturer of goods, using a particular phrase, design or symbol. Designs, words or symbols used to identify a provider of services are called service marks, although there is no practical legal difference between trademarks and service marks. The mark ensures consumers can easily identify a particular company as the source of a product, and encourages brand loyalty. It also distinguishes and sets apart a particular company’s goods and services from others. This encourages companies to maintain consistent quality standards in the goods and services they produce. In some cases, trademark protection extends beyond words or symbols, encompassing "trade dress." For example, if a fitness drink company packaged its drinks in unique, triangle-shaped bottles, that shape would be entitled to trademark protection.

Do You Have to Trademark Paintings?

A trademark is an emblem or phrase that uniquely identifies goods and services in the marketplace. Trademark rights attach immediately upon use of a mark to identify goods in commerce, but registration at the state and federal levels is a way to put the public on notice of a person's claim to rights in the mark. A painting may only be subject to trademark protection under limited circumstances.

Do I Need to Trademark My Clothing Lines?

A clothing line owner automatically gains trademark rights in its name, logo and slogan. Trademarks include any unique mark, word, sign or symbol associated with the company's clothing line products and services. The trademark owner may use the original mark on its clothing in a fashion show, clothing display, online store or any marketing materials in order to automatically qualify for trademark rights and protection. State and federal trademark registration are optional. In addition to trademark rights, a clothing line also holds copyrights in its clothing designs, fabric prints and graphic artwork. Copyright registration can deter other clothing labels from illegally copying a clothing line's designs and selling them as their own.

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