What do chapstick, a thermos and aspirin have in common? These iconic brands used to be protected by trademarks, but lost their legal rights over time. Unfortunately, the rightful owners of these brands were not aggressive enough in protecting their images. Now, the brand names that they created are used as generic terms in popular culture. So the original owners of these brands can no longer stop anyone from using their names. It’s too late.
Although I’ve provided some famous examples, the same type of trademark loss can occur with your brand if you’re not careful. While it is extremely important to shield your image by obtaining trademarks and/or servicemarks, you can’t just stop there. The fact is, you always need to be on the lookout for any infringements. Quite honestly, the welfare of your business is at stake.
To give you a better understanding of what could happen if you don’t watch over your trademarks or servicemarks, there are three practical reasons for being vigilant:
- Confusion in the marketplace – If another business, knowingly or unknowingly, starts using your image, consumers could become confused about your name. You may wind up missing out on potential revenue because clients accidentally turn to your competition, thinking they’re coming to you. So it’s critical that you always protect your name, your distinction in the marketplace, to eliminate the possibility of your brand getting blurred and the valuable distinction of your business product or service being lost. Furthermore, if you don’t take action in this scenario, you will eventually be seen from a legal standpoint as having abandoned your marks.
- Dilution of your brand – If you become lax and don’t object to other businesses using your name or some aspect of your brand, you also run the risk of your image being diluted. The result is that your unique and distinct name won’t mean anything anymore because so many other businesses share it. This can and should be stopped before the potency of your name becomes meaningless in the marketplace.
- Financial losses – If you don’t stand up for your marks, it’s very possible that other businesses could be financially benefiting from your advertising by poaching your potential customers. That’s because they’re openly using your name to make money.
The logical conclusion is that you need to be ready to enforce your trademarks and servicemarks at a moment’s notice. When you discover another business is ignoring your rights as the holder of these marks, then it’s time to take action.
Steps to Take
Once you discover that someone has used your name, the response is very simple: Immediately contact an intellectual property attorney in order to issue a cease and desist letter to the infringing party. The purpose of this letter is to give this individual or company notice that what they’re doing violates your intellectual property rights and constitutes an illegal use of your brand.
Included with this letter, your attorney will provide a copy of your pending or existing marks to supply undeniable proof of your brand ownership. Furthermore, the letter will make clear that the offender needs to stop using your mark without delay.
If this violation persists after a five-day period, then it’s time to go to the next level. Your attorney will promptly seek legal action to enforce your rights in either state or federal court under a trademark or servicemark infringement claim. This process involves getting a restraining order, which stops the entity from stealing your mark.
Secondly, your attorney will seek a court order that will compel the infringing business to divulge all of the financial gains that it received from illegally using your brand. Once this information is disclosed, you will then seek a court order that awards to your business, all of the profits made by the infringing party, because these profits rightfully belong to your business. And as a final kicker, you are entitled to seek reimbursement from the infringing party for all of the attorney fees that were caused by this unlawful infringement.
By taking the time and investing the money to obtain trademarks and/or servicemarks, the image of your business is protected. But, the reality is that a clever company can find ways to benefit from your brand, even if you’re the legal owner. For this reason, I recommend that you periodically perform a search online to determine if anyone is illegally using your intellectual property. If you discover an infringement, contact your intellectual property attorney.