Most people are familiar with the idea of “knock-offs” – those products which look like the original but are not, in fact, authentic. The sale of counterfeit items is illegal, and an individual charged with trademark infringement can face severe penalties. Therefore, it’s important to understand what a trademark is, how trademark infringement occurs, and how to protect yourself.
What Is A Trademark?
A trademark is an identifying symbol, design or sign that indicates the owner of the item. For example, the golden arches of McDonald’s are considered its trademark. To be considered an official trademark, an application must be approved by the United States Patent and Trademark Office. Trademarks are incredibly useful in developing a brand name that is recognizable and protected.
What Is Trademark Infringement?
Trademark infringement can occur in several instances:
Sales Trademark Infringement
Someone knowingly produces and/or sells items that contain a counterfeit version of a registered trademark. The counterfeit version is sold by a third party and, since it is not authentic, the official company does not benefit from the sales. This is problematic for businesses with strong brand identification, because the counterfeit items are often sold at a much lower rate, forcing them to lose potential customers.
To be charged with trademark infringement it must be proven that you were aware of the fact that the product was counterfeit. Often, businesses will come into contact with counterfeit items unknowingly and then sell them. In this case, the business is not necessarily liable for trademark infringement.
Identity Trademark Infringement
Often times a company will register their name with the United States Patent and Trademark Office, preventing counterfeit versions of the entire business. Businesses are not required to register their DBA (Doing Business As) with the USPTO, but those that do are able to file charges against anyone who tries to mimic their business with a similar DBA.
A famous example of this occurred in 2002 when the World Wrestling Federation (WWF) changed its name to World Wrestling Entertainment (WWE). This was a direct result of the World Wide Fund for Nature, which also went by the abbreviation of WWF, filing charges against the World Wrestling Federation.
What Do I Do If A Trademark Infringement Charge Is Filed Against Me?
Since trademark infringement laws are complex, it is important to protect yourself and your business if charges are filed. If found guilty, you and your business could lose all profits made off of the counterfeit items while also facing criminal penalties. To protect yourself from this possibility, there are several important steps that you can take.
1. Perform a Trademark Search
All of the approved trademarks are available through the USPTO office, and can be searched. Before naming your business, or when receiving products that may seem suspect, make sure that you perform a search.
2. Know Your Distributers
Research the businesses that distribute your products and ensure that they are following all legal avenues
and that their products are legitimate.
3. Hire a Criminal Defense Attorney
If you are charged with trademark infringement, it is important that you hire a lawyer with experience in the area. Most attorneys will offer a free case consultation and provide an initial plan of attack. Bring him or her all of your questions and establish a positive relationship. Remember to hire a lawyer you trust representing you and your business.
Since trademark infringement charges can have serious implications for you and your business, it is important that you understand the basics of these laws and take the steps necessary to protect yourself. If you have any questions, or are have been charged with trademark infringement, please do not hesitate to contact me.
