Your trademark is often the first thing a consumer will notice about your product. Whether you describe the goods or services you provide with a symbol, a slogan, or a single word, the first impression you give a consumer is the most important one. This first impression can likely determine your long-term relationship with a single consumer and an entire community. That is why if your trademark is violated in any way it can have reverberating financial consequences. If your trademark has been infringed and your business has suffered because of it, you should speak with an attorney immediately. If you require assistance in your Arkansas trademark infringement case, contact the Fayetteville intellectual property attorneys of Gunn Kieklak Dennis, LLP today.
6 Common Types of Trademark Infringement
Trademarks, such as the Gatorade thunderbolt, are used to identify a source of goods or services. While there are more than five types of trademark infringement claims a victim of trademark infringement can file a claim for, many trademark claims involve the same types of violations. Here are five of the most common types of trademark violations:
- Likelihood of confusion
- Trademark dilution
- Passing off
- Contributory passing off
- Reverse passing off
A cause of action for likelihood of confusion alleges that the use of a trademark in connection with the sale of a good is an infringement if it is likely to cause consumer confusion as to the source of the goods or as to the sponsorship or approval of goods. In other words, if someone uses a trademark like yours and sells a product like yours, you may have a valid claim of likelihood of confusion. The courts will employ a factor test to adjudicate likelihood of confusion cases. These factors include:
- The strength of the mark
- The proximity of the goods being sold
- The similarity of the marks
- Evidence of actual confusion
- The similarity of marketing channels
- The degree of caution exercised by the typical purchaser
- The defendant’s intent
Trademark dilution relates to use of a person’s trademark which dilutes the distinctive quality of the mark, either by “blurring” or “tarnishment” of the mark. Blurring is when the power of a mark is weakened because it is associated with dissimilar goods – for instance, putting a Microsoft logo on a box of cigarettes. This may not cause any confusion among consumers, but it will decrease the power of the mark. Tarnishment occurs when a mark is associated with products which cast it in an unwelcome light – for example, Polo Ralph Lauren’s name being used to open an adult entertainment nightclub called “The Polo Club.”
A cause of action for passing off occurs when an infringer tries to pass off its own product as another’s trademarked product – for instance, manufacturing cars and claiming they are made by Audi. Contributory passing off is similar to passing off, but the major difference is that the infringer induces a retailer to pass off his or her product as the product of another. An example of this would be the retailer telling customers a certain line of computers is made by Apple when it is made by a different company.
Reverse passing off is trying to pass off your own goods as those of another. An example could be removing all the Jaguar symbols off a Jaguar, replacing them with your own symbol, and trying to sell the car as your product.
Misappropriation causes of action hinge on a theory that a person should not be able to appropriate the benefits of another’s investment without providing their own investment. Therefore, defendants who are found to have taken a plaintiff’s trademark for their own use, and turned a profit as a result, may be held responsible for compensating the plaintiff.
If any of these scenarios seem to describe your current situation, you should seek out an experienced intellectual property lawyer to receive more information about your potential trademark violation case.
Compensation for Trademark Infringement in Arkansas
Plaintiffs who are victorious in their trademark violation cases may be entitled to a variety of remedies. One typical remedy is to grant the plaintiff an injunction against any further infringement by the defendant. Another remedy available to plaintiffs is receiving all the defendant’s profits from the misuse of the trademark, such as in the case of misappropriation. Damages can also be awarded based on harm suffered by the plaintiff and costs associated with civil litigation involving a trademark infringement.
Treble damages may also be awarded if the defendant is guilty of a showing of bad faith. Treble damages allow the court to triple the amount of actual or compensatory damages for a plaintiff. In trade dilution cases, damages are only awarded if the plaintiff can prove the defendant abused the goodwill of plaintiff’s trademark to turn a profit.
Fayetteville Intellectual Property Lawyers Protecting Your Business
Protecting the goodwill associated with your trademark should be a top priority. If you allow others to misuse your trademark or misappropriate it for their own means, your work or business may suffer greatly because of it. Your company could become associated with inferior or unrelated products, services, or businesses if you do not aggressively protect your brand.
If your trademark has been infringed and you are seeking legal remedies, speak with a lawyer as soon as possible. The Arkansas intellectual property lawyers at Gunn Kieklak Dennis, LLP possess years of experience in trademark protection and trademark representation in Arkansas. To schedule a free consultation, contact us at (479) 439-9840.