What Should I Do If Somebody Accuses Me of Infringing Their Trademark?

So you just got a cease-and-desist letter telling you that you've infringed on someone's trademark and promising you hell on earth.

What's your next step?

Watch the video and find out!

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TRANSCRIPT

You want to show that letter to your lawyer who is going to advise you of your options. But I know you’re looking for something more specific than that. Here is what the lawyer would do when they read that letter.

First thing, they’re going to see what rights that company that sent you a letter has. Do they have a registered trademark? Do they not have a registered trademark? What is their trademark registered for? What products and services does it cover? How closely does your brand resemble the brand that they have or that they allegedly have? What’s sold on their website? What information can you get about them to see if there is really any confusion between your use of the brand and their use of their brand?

Based on that, the lawyer would make a decision whether the two trademarks are confusingly similar, if there is a likelihood of confusion. And if the answer to that is yes, looks like there’s actually some confusion there or there is a likelihood of confusion, then the lawyer would typically suggest to come up with a way for you to cut your losses and get out of it. So then you just read that letter and see what the other side wants from you. If all they want from you is to stop using the brand, probably that’s what you’re going to end up doing. The only thing here to negotiate is maybe you buy yourself some time to transition from the old brand to the new brand.

If there is no confusion, then there are two options that you can take. Option number one is you can ignore that letter and see how serious the other side is. What are they going to do? Are they gonna sue you, are they gonna send you another letter, or they’re just going to say, well, you know what, we tried, it didn’t work, we’re not gonna do anything about it?

Your other option is that you can respond to them, whether you do it yourself or have your lawyer do it for you or have somebody else do it for you. You can respond and say, we don’t think that you have any claim, we don’t think that you have any right to try to force us out of our brand; we don’t think they’re confusing; we don’t think they’re confusingly similar; that’s what we do, that’s what you do, here’s the difference, that’s it. And again, you are going to wait from there, whether they’re going to insist that they think they’re right or that’s going to be the end of the conversation.

But the last thing, the last thing you want to do when you get this letter, is to do something about it, or ignore it, without really understanding the consequences. So what you need to do is to understand and have somebody walk you through this to see what your chances are and whether the trademarks are indeed confusingly similar. And only make your decision—what to do or not to do—based on that.


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Disclaimer: Please note that this post and this video are not and are not intended as legal advice. Your situation may be different from the facts assumed in this post or video. Your reading this post or watching this video does not create a lawyer-client relationship between you and Trademark Factory International Inc., and you should not rely on this post or this video as the only source of information to make important decisions about your intellectual property.

See our answers to other frequently asked questions about trademarks or leave your comments below!


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