Everyone who ever ran a startup knows just how difficult it is to pick a company name and slogan, especially when everything fun, appealing and memorable seems to have already been taken. Once you finally find something that meets all your criterion, you’ll register a company, form your marketing campaign around it and hope for the best. Now, imagine the level of frustration to find out that someone else merely decided to “borrow” this idea of yours for the purposes of their own business. This kind of brand infringement is simply unacceptable and there are several tips on how you should act in these scenarios.
1. Start by filing a trademark
The first thing you absolutely have to do, before you can even consider any future course of action is filing for a trademark when you first make your business. Just because you’ve made something, doesn’t mean that it’s yours in the eyes of the law, at least not without the necessary legal support. In other words, you need to start by filing for a trademark, which will, later on, ensure that you have a full legal right to sue people who infringe on it or take legal actions against them. The most important part of this advice is to try to avoid infringing on someone else’s brand, while you’re at it. This is why you need to conduct a proper research before you even start.
2. Identifying trademark infringement
Next, you need to be able to identify trademark infringement. Still, your own belief is merely a tip of the iceberg, seeing as how, during this stage, you’re supposed to provide proof of trademark infringement. For instance, you need to show that you have a valid trademark registration, that the other party is using it in trade and that the party in question doesn’t have the consent to use it. This is where you might want to get some professional aid in a form of a seasoned IP Lawyer. In this way, you can ensure that there’s no misunderstanding and that someone is, indeed, infringing on your brand.
3. Is it really an infringement?
The next thing you need to understand is the fact that you might be a bit oversensitive, which might make you see threats where there are none. Sure, someone might have borrowed a part of your idea or even used it as an inspiration for an idea of their own but this doesn’t make it an infringement. A similarity of marks needs to be on a certain level in order for this rule to work. This means appearance, sound and connotation but also a commercial impression. From all of this, it’s fairly easy to deduce just how easy it is for one to make an error based on their subjective feelings. Sadly, there are also those willing to abuse this loophole.
4. Is the lawsuit actually worth it?
Once you’ve determined that you’re in the right, you need to ask yourself an unpleasant question of is the lawsuit actually worth it? The problem with this is that there are too many factors to consider. For instance, you need to ask yourself is there any direct material loss from being mistaken for the other business. This happens when both of you belong to the same industry and customers have a hard time differentiating between you two.
Then again, by allowing someone else to go under the same name, you might risk getting dragged into a controversy or PR blunder you have nothing to do with. Furthermore, the issue of cybersquatting is still a serious threat, not to be taken lightly. Finally, as we mentioned in the introduction, letting someone else take credit and reap profits for your hard work and innovativeness is something that not a lot of people are willing to tolerate.
5. Avoid unjustified threats
If you determine that you need to take an action, it’s often best to leave the lawsuit as a last resort. Instead, you might want to try reasoning with the other party and offer them to make the corrective moves on their own. Unfortunately, by making threats you might A) aggravate them and B) become a subject of a lawsuit yourself. Making a trademark infringement accusation, especially making demands based on it may make you liable for making an unjustified threat. This too is one more reason why this is best left to professionals.
6. Don’t be afraid to file an appeal
The last thing you need to understand is that just because you’re right, it doesn’t mean that everything will run smoothly. Therefore, if you’re 100 percent convinced in your standpoint and you fail to win in court the first time around don’t be afraid to file an appeal. Who knows why you’ve failed the first time around but there’s always a chance that an error in a judicial system was exploited. On the other hand, there’s no rule and there’s nothing guaranteeing that you will win the second time around.
So far, we spoke so much about emotions and frustrations but, there’s one thing you need to understand at the very end – you’re running a business, not governing a personal brand. This means that you can’t allow your ego to get in the way. Sometimes, you’ll have nothing to gain and so much to lose from pursuing your right as an exclusive owner of brand markings, which is a horrible business move to make. At the end of the day, remind yourself why you’ve started a business in the first place.