2017-10-03
Trademark can add value to your business. The potential goodwill and the market reach it can offers may be critical to the success of your brand. Protecting your trademarks can be a stepping stone in your businesses success. Protection begins with the creation of a trademark or trade name. Once created, you may choose to seek legal protections. Federal registration can offer you exclusivity over your trademarks and a way of protecting them. When determining whether or not to register a trademark, you will need to consider the cost. Whether you apply for registration yourself or seek assistance, the value it offers will cost you some effort and money.
Simply registering your trademark is not sufficient. You must be able and willing to enforce rights in the event of infringement. After all, you have put both time and money into your trademarks for a purpose. A trademark infringement lawsuit is sometimes the only way to safeguard your exclusivity over the mark. However, litigation can be expensive, and sometimes outweigh the value of your trademark.
So, if someone intrudes your rights, is a trademark infringement lawsuit worth it?
Trademark Infringement Lawsuit – Worth or Not
When someone infringes your trademark, the first thought that comes to your mind is taking them to court. Since your goodwill and market position is threatened, suing the infringer seems like the only way. However, trademark litigation can be expensive in terms of effort and money. Owning a registered trademark is not a guarantee of success during trial. Before making a decision, you need to understand the litigation process and also consider repercussions.
Trademark litigation can be broken down into three steps - initiation of action, the case trial, and appeal (whether as a winning or losing party). To initiate an action, you will want to hire an attorney. Professional help is often necessary and beneficial to prevent mistakes that could threaten you during the proceeding. Depending on the complexity of the case and the goodwill at stake, be prepared to shell out thousands of dollars on attorney fees. Expenses can add up quickly for trial preparation, trial representations and potential appeals.
During the proceeding, there is a high burden of proof on the plaintiff. As the plaintiff, you need to provide strong evidence to prove the allegations of infringement. In AMF, Inc. v. Sleekcraft Boats, the court set forth eight elements that will be expected to be satisfied by the plaintiff. These include the strength of the mark, proximity of goods, similarity of the marks, evidence of actual confusion, types of goods and their marketing channels, intent of the infringer, and the likelihood of expansion of the product lines. Apart from other things, these elements more or less satisfy the crux of infringement – confusion. Although, this is true, proving infringement will demand certain costs. Evidence of actual confusion is not easy to gather. Typically, trademark owners conduct surveys to prove the existence of confusion. The survey alone can cost thousands of dollars. And, after all this, what if the defendant turns out to be the first to use the mark or provides strong evidence of their own? You may not even want to imagine it.
Intellectual property litigation is an expensive kind of litigation. While trademark litigation may not be as expensive as patent litigation, the cost can be substantial. What’s more, court judgments cannot be predicted. All these factors make it vital to give trademark infringement lawsuits a careful thought. Yes, if you have a great amount of goodwill and enough resources , then suing for infringement may be worth it. It is also important to consider the potential repercussions of choosing not to enforce your trademark rights. A failure to enforce your rights may lead to a loss of trademark rights or dilution of your goodwill. Consider a consultation with a trademark attorney to avoid being a victim of impulse actions.
