A leading authority in the world of marketing stated that “the power of the brand is not in the name but what has been invested in that name over the years”. Whether you are just starting your own or are seeking to grow your already established brand, it’s important to remember your brand’s name and logo become symbols of trust and quality for your customers. As such, it is necessary to ensure your brand is safe from infringement claims, but what does that mean?
- How do you know if your name or logo is infringing on an existing logo?
- How do you protect your logo or brand once you have it?
- What happens when another business adopts a similar name or logo?
This is where the concept of trademark infringement comes into play. In this article, we’ll delve into the realm of the situation, starting with exploring what it means and why business owners must understand this critical legal concept. We’ll also provide you with examples of real lawsuits to help you understand exactly how similar is too similar.
Trademark Value
Taking inspiration from cattle ranches and calf branding, the marketing world uses the term “brand” to refer to someone’s perception of a business or company which can be based on a logo, the products or services offered, or even a person. However, for many businesses, especially those online, the brand is a primary asset. By investing time, energy, and money into your brand you are increasing your business’s value and developing it into an original concept. Like David Brier once said “Branding is the art of differentiation” so why not take time to make sure your brand unique and is in compliance with current trademark laws.
Trademark Infringement Examples & Lawsuits
Some of the most compelling instances of trademark infringements emerge from real-life legal disputes. Examining these real-world cases can offer valuable insights into what constitutes the condition. For instance, if you are embarking on a new business venture and are in the process of selecting a name, studying these examples can provide you with a clearer understanding of what actions might constitute infringement. Alternatively, if you believe that another business’s logo and name closely resemble yours, the following discussion can assist you in determining whether pursuing legal action is a viable course of action.
It is worth noting that a considerable number of trademark lawsuits culminate in settlements prior to reaching a verdict. One such case is the lawsuit brought by Apple against the smaller company, Pear (a true story). Apple stated that the core issue was that Pear’s logo was too similar to Apple’s iconic design. In this case, Pear opted to resolve the dispute by making minor alterations to its logo, as illustrated below. Since the case reached a settlement, we can only speculate about the potential verdict but just remember some apples don’t fall far enough from the tree.
It is prudent for any business in the process of choosing a name or logo to exercise caution against any potential trademark infringement. In cases where the resemblance is close, legal battles can result in substantial costs and time commitments.
| Winning Mark | Infringer |
 This case is a clear example, any consumer would be confused between the two. Super 7 didn’t get away with this one. | |
 Under Armour, Inc. V. Fujian Tingfeilong Sporting Goods Co., Ltd. We all know Under Armour. Uncle Martian tried to take advantage of that exposure but using a similar logo, same colors, and similar words with the first one starting with the same letter. Clear violation. | |
 This adidas case gets trickier. Of course it looks the same but the question here is about the stripes and whether consumers would believe the two stripes to be adidas. It was found to be infringement which gave adidas a huge edge when in a gray area. | |
 In-N-Out Burgers v. In-N-Out Cleaners LLC Even though In-N-Out Cleaners is a completely different industry, the efforts to copy are so egregious that it was found to infringe. Typically you are ok in different industries but not with such blatant copying. | |
 So, this one didn’t actually go to trial but it shows how careful a new business needs to be. This one settled and pear ended up making some minor tweaks to its logo to make apple happy. This one is a bit questionable but ultimately who can compete with the legal fees needed to fight with apple. It’s also important to know that holders of trademarks are required to do everything to protect their marks or they lose some of their brand protection. | |
 With Paypal and pandora, you again have separate industries but the confusion exists because they are both apps and easily confused. | |
Trademark Infringement Explained
The status refers to the unauthorized utilization of a trademark or a similar mark, leading to consumer confusion. Trademarks encompass names, logos, symbols, phrases, or any unique identifier distinguishing your offerings from others.
Infringement transpires when a third party employs a mark likely to create confusion or mislead consumers into presuming an association, affiliation, or endorsement between their products or services and the original trademark owner. Trademark infringement cases typically hinge on the potential for consumer confusion.
Imagine dedicating years to establishing a bakery renowned for its distinctive logo and brand name. Suddenly, a new bakery sporting a logo akin to yours emerges in your vicinity. Patrons flock to the new bakery, assuming it’s an extension of your enterprise. This serves as a quintessential illustration of the situation.
Trademark Infringement Types
The infraction comes in various forms, each presenting unique challenges and implications. Let’s dive into the different types of trademark infringement that businesses should be aware of.
Brand Infringement
This is a legal concept that transpires when another business or entity appropriates a brand’s identity, encompassing its name, logo, or other distinctive attributes, with the intention of causing consumer confusion. The gravity of such infringements lies in their potential to mislead consumers into believing that they are engaging with the original brand, thus jeopardizing the authentic brand’s standing.
To illustrate, consider the case of a diminutive boutique skincare enterprise bearing the appellation “PureGlow Naturals.” Over time, this establishment has cultivated a devoted clientele by offering excellent organic products. In a notable contrast, a substantial skincare conglomerate has chosen to introduce a new product line under the moniker “PureGlow Organics,” accompanied by a logo strikingly akin to the boutique’s.
In this scenario, individuals who have come to associate “PureGlow Naturals” with a hallmark of authenticity may unwittingly procure products from the competing entity, laboring under the misconception that they are patronizing the original establishment. This development not only tarnishes the reputation of the boutique but also engenders a state of bewilderment among consumers, thereby establishing a conspicuous instance of brand infringement.
Trademark Counterfeit
It represents a more insidious form of infringement, going beyond mere unauthorized use. It involves the deliberate replication of a brand’s products, often with inferior quality, all designed to trick consumers into believing they’re purchasing authentic goods. Counterfeiters capitalize on the established popularity and trust associated with recognized brands to profit from these illicit sales.
Consider this illustrative scenario: An internationally renowned electronics company is celebrated for its top-tier smartphones. Enter the counterfeiters, who painstakingly craft near-perfect duplicates of these smartphones, complete with copied packaging and logos.
These counterfeit phones hit the market at significantly lower prices, luring unsuspecting bargain-hunting customers. However, the compromised quality of these replicas not only undermines the authenticity of the brand but also inflicts financial losses and tarnishes the brand’s image.
Domain Name Cybersquating
This entails registering a domain name that either exactly matches or is deceptively similar to an existing trademark, intending to exploit the trademark owner’s reputation. Cybersquatters often aim to profit by selling the domain back to the legitimate trademark holder at an inflated price.
Picture this scenario: A fashion brand known as “StylishAttire” has gained widespread recognition for its distinctive designs. Along comes a cybersquatter who secures the domain “StylishAttireFashion.com” and then offers to sell it back to the original brand for a hefty sum.
This practice not only compels the authentic brand to pay a premium to safeguard its online presence but can also divert potential customers to the cybersquatter’s website, negatively impacting its online reputation. Learn how to legally protect your website.
Keyword Advertising Infringement
It unfolds in the digital landscape when one business leverages a competitor’s trademarked terms as keywords to activate their own advertisements, effectively redirecting web traffic and potential customers.
Consider this scenario: A renowned athletic footwear company, “FastFeet,” initiates an online advertising campaign utilizing the keyword “SwiftStride.” However, this particular keyword is a trademarked term exclusively owned by a smaller local athletic shoe store known as “Swift Sports.”
As a direct consequence of the extensive advertising efforts by the larger corporation, individuals searching for “Swift Sports” may find themselves redirected to the “FastFeet” website, inadvertently benefiting the larger brand while simultaneously confounding customers who were initially seeking the local store.
Product Packaging Infringement
This involves copying the distinctive packaging of another brand’s products, leading to confusion among consumers regarding the origin of the goods.
Consider a famous energy drink brand with a distinctive can design featuring bright colors and unique patterns. A competitor decides to introduce a similar-looking energy drink with packaging almost identical to the well-established brand’s design. Customers may mistake the imitation for the original product, leading to potential revenue loss for the genuine brand.
When is it Not a Violation?
Understanding trademark infringement also involves recognizing situations where using someone else’s trademark is not deemed a violation. Let’s explore some exceptions and scenarios that fall outside the scope of infringement.
Descriptive or Nominative Fair Use
Descriptive fair use It allows businesses to use a trademarked term to describe a product or service’s characteristic, quality, or feature. It’s permissible as long as the use doesn’t create confusion or imply an affiliation with the trademark owner.
Nominative fair use permits a trademark to accurately identify and refer to the trademarked goods or services themselves. This is often seen in comparative advertising or reviews where mentioning a brand is necessary for accurate communication.
Laches or Delay in Enforcement
Laches refers to a delay in enforcing one’s trademark rights, which can weaken a claim of infringement. If a trademark owner is aware of an infringement but waits too long to take legal action, the court may find that their delay has prejudiced the alleged infringer’s rights.
For example, if a fashion brand, “Glamour Couture,” discovers a local boutique using a similar name, “Glamour Couturier,” for several years and only takes legal action after a significant delay, the court may consider this delay as laches, potentially weakening the fashion brand’s trademark infringement claim.
Unclean Hands
This doctrine comes into play when the party accusing trademark infringement is found to have engaged in unethical behavior or misconduct related to the trademark. If the trademark owner’s actions are improper, they may be barred from seeking legal remedies.
For instance, if a software company, “TechWiz Software,” accuses a competitor of trademark infringement, but evidence emerges that “TechWiz Software” had previously used deceptive marketing tactics to gain an unfair advantage, the court may apply the doctrine of unclean hands, potentially preventing “TechWiz Software” from pursuing trademark infringement claims.
Trademark Infringement Elements Management
Business invasion and branding violation cases have the potential to turn your entrepreneurial aspirations into a legal ordeal. The stress they bring can permeate every aspect of your business, leading to sleepless nights, anxiety, significant financial setbacks, and an uncertain future.
In the intricate realm of trademark law, seeking legal counsel becomes a vital source of clarity and protection. It’s akin to having a seasoned navigator guiding your ship through turbulent waters, ensuring your busines name is compliant so you steer clear of potential obstacles.
A seasoned business attorney offers a wealth of expertise. They possess an in-depth understanding of trademark laws, regulations, and precedents, enabling them to evaluate the intricacies of your branding elements.
About the Author
Wesley Henderson co-founded Henderson & Henderson law firm in Charleston SC. He focuses on helping businesses navigate their legal environment, including new owners opening any type of new business. Wesley can be reached by email.
