A Distinct Mark: The value of a trademark comes from its distinctiveness in the market. Unique trademarks are simply more valuable than marks that are similar to other marks. Distinctive trademarks are more recognizable, more memorable, and if you establish a track record of quality goods or services, trust can be rolled into that association. As your trademark becomes more well-known your business goodwill increases and in turn, increases the value of your company. A well-recognized brand can become a profitable asset. For example, consider Nike. According to Statica, in 2021 the Nike brand was valued at approximately 30.44 billion U.S. dollars. 
If a third party copycats or mimics your mark, intentionally or not, that use has the potential to dilute your goodwill and reduce the value of your trademark and your business. It can also create confusion in the marketplace. Fundamentally, trademark law was developed to protect consumers by preventing newcomers from “trading on” existing brands and thus confusing consumers. In fact, the law favors a system where consumers can trust the source from which they are buying. Having a third party use your mark or a confusingly similar mark is not only frustrating, it also undermines your mark’s distinctiveness. Therefore, it is important to police the use of your trademark in the market. You can do so via performing internet searches or setting up a more formal trademark watch program. See our blog post on trademark watch services for a detail breakdown of the options and costs for trademark watch programs.
If you suspect someone is infringing on your trademark rights it is important to seek legal counsel before you approach them. There are several pitfalls that you want to avoid in the process of asserting your rights. One big pitfall is assuming you enjoy superior trademark rights, only to learn that the supposedly infringing party has used the mark prior to your use and may have the superior rights. That backfire could be costly.
We have several means of determining whether your rights are greater. Keep in mind not all uses of your mark are deemed infringement. A careful analysis of the alleged infringement is necessary to confirm whether the other party is actually infringing upon your trademark rights. They could have a fair use argument for example. An attorney can guide you through that analysis and help you make proper decisions in enforcing your rights. After completing the proper legal analysis, a cease-and-desist letter may be appropriate. Or an opposition might be the best approach. (An opposition is a filing that occurs during the publication period of a United States trademark application, prior to the trademark Office’s issuing a Notice of Allowance. This is a time-specific opportunity that is often not available at the time you discover the infringement). Another enforcement option might be a friendly phone call to the attorney representing the other party that will help resolve the issue. Sometimes the other side is unaware of the infringement and will be more than willing to cease the infringement upon notice. Other times, the other side might “dig in” and fight. It all comes down to the value each party perceives in its continued use of the mark, relative to the cost to fight. Proper due diligence will save you time and money and will prepare you to take the appropriate steps to protect your trademark rights.
If you suspect someone is infringing on your trademark rights, give us a call for a free consultation. You can reach us at 512-920-1899 (Austin office) or 503-439-6500 (Portland office). Or email us at email@example.com.
Ted D. Karr, Partner
About the Author:
Mr. Karr’s practice focuses on trademark law, since 2005. It is his goal to provide practical legal advice that aligns with the business goals of each client. He excels in providing clients with solutions that reduce risk and save money. He has advised hundreds of clients in obtaining registration of trademarks in the United States and abroad and in addressing and resolving trademark infringement issues.
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