If you encounter a business using your product signage similar to yours then what should be done to stop it. Don’t rush to call a lawyer, but calm down and assess whether a lawsuit will resolve this issue.
Is this situation actually trademarking infringement?
The answer will be found in the question – Do you possess federally registered trademark? Was the trademark from your niche? For example, a trademark for guitar will not give protection over name for chocolates.
You get nationwide right to use the trademark legally for certain categories. It means, protection of marks will exist within specific spheres. Legal trademark gives strong infringement case, if another business in your sphere tries to use the same.
Is filing lawsuit for trademark infringement worthy?
Trademark litigation cost is significant, but increase on the location of litigation and appeal possibility. Such costs may be sensible for companies, whose value is based largely on their brand. For small business, careful consideration is necessary. You can visit weblink and read the details to understand better.
If your mark is used in your state only then infringement can be filed in state court. Your state laws will decide how attorney fees need to be paid. In several states, it is not mandatory that attorney fees get paid by loser. This directly means that even you win, you will need to compensate for your own advocate.
If infringement case ends in federal court then law permits losers to pay victorious plaintiff’s lawyer fee but the case needs to clearly reveal bad intention. In unusual cases, courts act tactfully to reward triple damages towards attorney fees. They order the defendant to pour out any profit they earned through infringement, especially in cases where wilful infringement is proved.
Trademark attorney fees are not to be remunerated on contingency basis, but are paid after the case is settled or judgement is received. Deferring fee pattern gives plaintiff some space to pay the lawyer.
Obtain preliminary injunction
Court can grant temporary or preliminary injunction, where the alleged infringer will be given orders to stop using the questionable trademark until the infringement case outcome is pending.
As the alleged infringer is cornered, they will try to reach settlements on favourable terms. Preliminary injunction approval from court will need two fundamental facts –
- If emergency relief is not approved, you business will be damaged beyond repairs.
- Your case is sufficiently strong making it possible to win, if trial takes place, eventually.
How use of an infringed mark robs plaintiff’s goodwill represented by the trademark can be displayed easily. However, measuring goodwill loss in terms of money is not the real method because this kind of damage is irreparable.
Probable success level is hard to assess, so it needs plaintiff to convince the judge that their claim is strong and holds good to obtain preliminary injunction approval, before trial. Some courts willingly approve but in few cases prediction to get preliminary injunction seems impossible. Once court rules preliminary injunction request losing party will need to pay significant incentive against settlement.
Usually, preliminary request results in early termination of case, so attorney fees are much less then fully litigated cases. However, preparing for successfully handling preliminary injunction process is challenging for the attorney, so their routine charges may be around ten thousand dollars.
You can evaluate how infringement claims cost are high even before the trial. So be calm and behave rationally. If your product trademark is not being used in your niche then why engage in costly lawsuits.