What is a Trademark Violation?

A trademark is a word, symbol, design, or any combination of these that identifies and distinguishes the source of goods or services of one party from those of others. Trademarks are valuable assets that help consumers recognize and trust the quality and reputation of a brand.

However, sometimes trademarks are used by others without authorization, in a way that creates confusion or deception about the origin or affiliation of the goods or services. This is called a trademark violation, or trademark infringement, and it can harm both the trademark owner and the consumers.

a child wearing a button down shirt with a vest while holding a book and looking surprised

A trademark is a word, symbol, design, or any combination of these that identifies and distinguishes the source of goods or services of one party from those of others. Trademarks are valuable assets that help consumers recognize and trust the quality and reputation of a brand.

However, sometimes trademarks are used by others without authorization, in a way that creates confusion or deception about the origin or affiliation of the goods or services. This is called a trademark violation, or trademark infringement, and it can harm both the trademark owner and the consumers.

How to Prove Trademark Violation?

To prove a violation, the trademark owner must show that:

  • They have a valid and legally protectable mark;

  • They own the mark and have priority over the alleged violator;

  • The alleged violator used the mark or a similar mark in commerce, without consent, in connection with goods or services; and

  • The use of the mark is likely to cause confusion, mistake, or deception among consumers about the source, sponsorship, or approval of the goods or services.

The likelihood of confusion is the key factor in determining trademark infringement. It depends on various factors, such as:

  • The similarity of the marks in appearance, sound, meaning, and impression;

  • The similarity of the goods or services offered under the marks;

  • The channels of trade and marketing methods used by the parties;

  • The degree of consumer care and sophistication in purchasing the goods or services;

  • The strength and distinctiveness of the mark;

  • The evidence of actual confusion or consumer surveys;

  • The intent of the alleged violator in adopting or using the mark; and

  • Any other relevant circumstances.

What are the Consequences of a Trademark Violation?

Trademark infringement can have serious consequences for both the violator and the trademark owner. The violator may face:

  • A lawsuit in federal or state court for trademark infringement;

  • An injunction or court order to stop using the mark;

  • Monetary damages, including profits, actual damages, statutory damages, treble damages, punitive damages, and costs;

  • An order to destroy or forfeit any infringing goods or materials; and

  • An order to pay attorney’s fees and costs to the trademark owner.

The trademark owner may suffer:

  • Loss of sales, profits, goodwill, and reputation;

  • Dilution or weakening of their mark’s distinctiveness and value;

  • Confusion or erosion of their brand identity and image; and

  • Increased costs of enforcing their rights and monitoring the market.

How to Avoid Trademark Violation?

To better assure that you avoid infringement, we recommend:

  • Conducting a thorough trademark search before adopting or using a mark to ensure that it does not infringe on any existing marks;

  • Registering your mark with the U.S. Patent and Trademark Office (USPTO) to obtain federal protection and benefits;

  • Using your mark consistently and properly with appropriate symbols (® for registered marks, ™ for unregistered marks) and notices;

  • Monitoring the market and enforcing your rights against any unauthorized or infringing uses of your mark; and

  • Seeking legal counsel from a qualified trademark attorney if you have any questions or concerns about your mark or potential violations.

Trademark violation is a serious matter that can affect both businesses and consumers. By understanding what constitutes a trademark infringement and how to prevent it, you can protect your brand identity and reputation, as well as your customers’ trust and loyalty. Contact us to learn more.