Reputation is everything in the business world, and if you’re not constantly on guard against brand infringement, yours could suffer irreversible damage. Competitors may seek to profit off the goodwill you’ve established with consumers, and even accidental misuse of your brand can cause significant harm. If your brand has been infringed, we recommend taking action as quickly as possible.
What is Brand Infringement?
Any word, phrase, logo, name or identifier that distinguishes your company from others is considered a trademark, and when someone misuses it, they’re engaged in brand infringement.
When third parties violate your trademark, they can be held liable through injunctions and court-ordered financial penalties. To be considered a brand infringement, there must exist a likelihood of confusion between the two trademarks. Courts often look at the following factors when considering whether confusion is likely to exist:
- Are the trademarks similar in sight, sound or connotation?
- Are the products or services similar?
- The strength of the senior trademark (i.e. fanciful, arbitrary, suggestive, descriptive or generic).
- Has actual consumer confusion been occurred?
- Are the marketing channels the same?
- What degree of care is exercised by the average purchaser?
- Was the defendant’s intent to cause confusion when using the trademark?
- Is the senior user likely to expand the product line outside of their current market?
These are known as the Sleekcraft Factors, and various federal courts use them to judge whether a likelihood of confusion exists. Other courts may use the DuPont Factors to gauge this possibility. It’s not typical for a single factor under either of these tests to be utilized on its own. Courts will consider all the aspects in relation to each other when making a judgment. That said, the first two factors are usually the most important two.
If someone is engaged in brand infringement against your business, it’s also important to consider trademark classes. Two companies can potentially use the exact same trademark without fear of infringement if they fall under different classes. Consider the following:
- Delta faucets and Delta flight services.
- Pandora jewelry and Pandora music services.
- Graco industrial products and Graco baby products.
- Apple Records and Apple
Because each of the businesses using these brand identifiers fall into separate and typically unrelated trademark classes, it’s difficult to claim that a likelihood of confusion would exist. People are unlikely to believe, for instance, that Delta being used for faucets has some relation to an airline.
While likelihood of confusion is the most common issue involved in brand infringement, it’s also possible that trademark dilution could occur. This is feasible when a lesser-known company causes potential damage to a famous brand through use of their trademark in a way that is unlikely to cause confusion. Even if no likelihood of confusion exists, simultaneous use could devalue the brand or lessen its overall strength.
Brand Name Infringement
Competitors who engage in brand name infringement are often hoping to profit from the reputation you’ve built in your industry. While misusing slogans, trade dress and even logos could possibly confuse consumers, the direct infringement of a name is most likely to cause confusion.
Brand owners should recognize, however, that not all unauthorized use of a brand name constitutes infringement. Due to doctrines like free speech and fair use, your brand can be used by competitors, journalists critical of your business, and others whose use may cause legitimate damage to your brand.
Courts consider the following aspects when reviewing cases of fair use:
- Are references to the brand, the products/services sold, and the owner accurate in nature?
- Was there no other simple way to reference the brand, its owner or the products and services?
- Is there any implication of sponsorship or endorsement?
- Was the brand used no more than necessary to convey a point?
Comparative advertising, non-commercial use in media articles, parody videos and other instances of unauthorized use of a brand name are typically protected under fair use if they meet certain requirements. Any other use could potentially confuse consumers, and this is even the case with trademarks that haven’t been registered with the USPTO.
Fortunately, there are safeguards available to brands under common law:
- Regional protection against brand name infringement.
- Right to file lawsuits and seek injunctive relief against infringers.
- Can serve as a basis for seeking trademark registration.
Even with the maximum level of protection for your company, competitors can sometimes utilize your brand name in non-comparative marketing. This is thanks Google Ads – which allows consumers to be targeted based on search behavior. Competitors can show their products to those searching for your brand. If there’s no attempt to confuse consumers, it’s not considered brand name infringement.
Amazon Brand Infringement
One of the quickest emerging issues in the world of intellectual property infringement is Amazon brand infringement. Amazon’s household penetration has recently increased to 51 percent. More people sign up to buy items on the site every day, and this has created an opportunity for infringers to make money off other people’s work.
One of the biggest issues on the platform is the peddling of counterfeit goods. Overseas sellers or domestic resellers take advantage of Amazon Standard Identification Numbers (ASINs) to sell fake goods under legitimate listings. Tools like Amazon Brand Gating and Brand Registry help deal with some issues, but they’re not fully effective.
Consider taking the following actions to fight Amazon brand infringement:
- Federally register your trademark. This is necessary for the Registry and Brand Gating.
- Perform periodic searches for your brand including at Amazon.com.
- Immediately report violations through the Brand Registry or Amazon’s report infringement
- Utilize the Enhanced Brand Content feature to stand out from potential infringers.
Just as competitors can use your trademarks via Google Ads without committing brand infringement, they can do the same on Amazon. This is only via paid ads, however, and the platform discloses the fact that these are sponsored results. However, if someone includes your brand name in their product listing to show up in additional searches, they’re likely violating your brand.
It’s important that you act whenever you identify instances of brand infringement on Amazon. Allowing unchecked misuse of your brand can result in the loss of your rights. If you end up in court over these violations, you’ll need to show active efforts to defend your brand.
Safeguarding Online Rights
Amazon isn’t the only digital space where you may experience brand infringement. The World Intellectual Property Organization (WIPO), for instance, receives about 3,00 complaints each year regarding cybersquatting. Nearly one-third of these cases originates from the United States. Considering the high risk of violations online, the following steps are important to take.
Be on the lookout for Cybersquatting. Dishonest individuals could purchase a domain name featuring your brand, and even if you think you’ve already covered this, infringers can still engage in this behavior thanks to different domain types (e.g. .com, .net, .org).
Whether they’re attempting to sell under your brand name or trying to extort money from you, it typically won’t end well for them. Most cases involving trademark cybersquatting end with the squatter losing their rights. These disputes are handled through the Internet Corporation of Assigned Names and Numbers (ICANN).
Brand infringement on social media is an increasingly problematic issue. You may occasionally notice sponsored Facebook ads, for instance, that offer products related to newsworthy events or contests with impressive prizes. If you click on the actual page, however, you’ll oftentimes find that it’s brand new and was seemingly created just to promote an ad that often features brand infringing designs.
Trademark infringement on Instagram, Twitter, Facebook and Pinterest present a danger to your brand. This is particularly the case considering how easy an offending post can go viral. Take the time to occasionally search for your trademarks on these platforms. Someone could be making substantial profit from your reputation.
Hashtags and Handles
Your registered username (i.e. handle) and hashtags featuring your trademark present unique issues in the social media sphere. Someone could have registered your brand name as a handle, for instance, long before you sought federal protection. Competitors could also make a habit of using your trademarked properties as hashtags.
Both these situations could be considered brand infringement. It often comes down to whether consumers are being confused Social media platforms handle these issues on a case-by-case basis, but you’ll typically see better results by dealing with the situation with the assistance of a trademark attorney.
Responding to Brand Infringement
In the event that your brand has been infringed, we suggest that you have us send a trademark cease and desist letter. By sending these notices, you’re letting the other party know that you’re willing to defend your brand across platforms to the full extent of the law. These also serve to create an evidentiary trail, and if infringement continues, it may be proof that the violations were willful. This can result in higher court awards.
If violations continue or brand infringement results in substantial loss or damage to your company, trademark litigation is your best recourse. This will give you the opportunity to receive compensation for lost profits, court costs, royalties, actual damages and even attorney’s fees in exceptional cases. You’ll also establish a pattern of defending your property, and this can protect your brand in the future.
If you have a brand infringement issue, please contact us today for a free consultation.