In short, intellectual property law is the written set of laws that provide certain privileges and protections for owners and inventors of certain intellectual property. The purpose of intellectual property laws are to encourage and protect new ideas, inventions, and the creation of new technologies for the purpose of economic growth.
Then, with the protections granted by intellectual property laws, an owner of a piece of intellectual property will have the confidence that their creative work and ideas can be protected. The following is a list of different types of intellectual property that fall under the umbrella and protection of intellectual property law:
What Is a Trademark?
In legal terms, a trademark is any word, design, phrase, logo, or other symbol that is used to identify a product and/or the source of a product. In essence, a trademark is a specific mark that creates an identity for the business in which it is utilized. The main purpose of a trademark is to distinguish one product and/or manufacturer from others.
Trademarks can be owned by individuals, partnerships, or any other legal entity, including a corporation. Some of the most popular trademarks are recognized worldwide, such as the golden arches of McDonalds, the apple logo, coca-cola’s logo, etc. It is important to note that in order to qualify for the full amount of protections granted to trademark owners in the United States, trademarks must first be registered.
What Is a Registered Trademark?
Simply put, a registered trademark is a word, design, phrase, logo, or other symbol that has been approved as an official trademark through the federal United States Patent and Trademark Office (“USPTO”). Once the mark is validly registered with the USPTO, the trademark will be protected for an initial period of 10 years.
During that initial 10 year period, the trademark owner will be required to file updates with the USPTO to show that the trademark is still in use. However, not all trademarks can be registered with the USPTO.
Registered trademarks can be used in connection with a specific product or line of products, such as screen printing services or the sale of a clothing brand. Registered marks can also be used in connection with the provision of various professional services, such as plumbing, lawn services, or electrical work. It is important to note that the trademark registration application process for product trademarks and service trademarks are often different.
However, both application processes typically require a background search of the USPTOs database in order to check that the mark isn’t already in use by another entity. The application process also involves the submission of various different documents and descriptions that identify how the mark will be used in commerce.
How Do I Register a Trademark?
As noted above, in order to qualify for the full amount of protections granted to trademark owners in the United States, trademarks must first be registered with the United States Patent and Trademark Office (“USPTO”). Once a trademark is registered, the trademark will then be protected for an initial period of 10 years.
It is important to note that before registering a trademark, a prospective applicant should conduct a thorough search through the USPTO’s database in order to determine whether any other individual or entity is already using the same or a similar trademark.
It is important to not copy or utilize another’s registered trademark, because doing so could result in you being sued by that trademark’s owner for trademark infringement. However, there are instances in which a business or person can use a trademark, such as when the trademark has become generic.
What Is Trademark Infringement?
In short, trademark infringement is the illegal use of someone else’s trademark. There are several ways in which someone can be found liable for trademark infringement. However, typically trademark infringement occurs because someone is using the same or similar mark for commercial gain or causing damages to the original trademark owner.
For example, if an individual or entity knowingly copies a company’s logo and uses that logo on their own products without the original owner’s consent to do so, they would likely be sued for trademark infringement by the original owner.
What Are the Penalties for Trademark Infringement?
Intellectual property laws in the United States prescribe harsh penalties for the theft of intellectual property. Typically, intellectual property theft and infringement violations are charged as federal crimes, but they may also be charged as crimes under specific state laws.
For instance, a consumer could bring a civil suit against an individual that sold them counterfeit goods with another’s trademark based on their state’s theory of fraud.
Examples of potential legal consequences of trademark infringement and trademark counterfeiting include:
- Statutory criminal fines;
- Imprisonment of one to up to several years;
- Probation sentences for up to 120 months;
- An injunction letter that directs the party selling counterfeit goods or infringing on another’s trademark to cease and desist their illegal use of the mark.
- Typically, an injunction letter or a cease and desist letter is the first legal action that an infringing party will face.
- The letter will demand the infringing party cease using the trademarked material, or face further penalties;
- Loss or suspension of a business operating license, if the individual is found to be passing off their own goods as another company’s goods; and/or
- Civil charges filed by the owner of the trademark or any consumers that were harmed by the infringement.
In order for a trademark owner to prevail in a civil case of trademark infringement against an infringing party, the trademark owner must typically prove the following legal elements to the court:
- The trademark owner must prove that they own a valid trademark;
- The trademark owner must then prove that the infringing party used the same or a similar trademark in commerce without their consent or license; and
- Finally, they must prove that the infringing party’s use of the trademark caused a “likelihood of confusion” to the consumer, and resulted in the trademark owner suffering monetary damages.
Once the trademark owner proves all of the above elements, the infringing party will likely first receive an injunction order to cease their use of the mark and close their business. Additionally, the infringing party will also be criminally fined for their illegal use of the trademark, including having to pay civil damages based on the amount of losses demonstrated by the actual trademark owner.
Then, if the prosecution proves that the defendant acted intentionally in violating the trademark, the court may also award punitive damages that exceed the amount of the monetary loss demonstrated by the trademark owner to punish the wrongdoer.
Do I Need A Lawyer For Help With Trademarks?
If you have any questions, concerns, or disputes associated with trademarks, it is in your best interests to consult with an experienced trademark attorney. An experienced intellectual property attorney will be able to help you understand your legal rights and options in regards to your trademark, according to both federal law and the laws of your specific state.
An attorney will also be able to assist you in filing a civil lawsuit against any party that may be infringing upon your trademark or causing your mark harm. Finally, an experienced attorney will also be able to represent you in any in person court proceedings, as needed.