What is trade mark infringement?

Trade mark infringement is a serious matter and a common one in trade. A trade mark allows businesses to distinguish themselves from their competitors, but infringement can undermine that distinctive character. What exactly happens when a trade mark is infringed? In this article we discuss what trade mark infringement is, when it arises, what you can do if you are faced with it, and we give a concrete example.

When is there trade mark infringement?

There is trade mark infringement where someone uses a trade mark, or a term or sign resembling it, without permission, in a way that can cause confusion among the public. That can happen where the mark is used on goods or services similar to those for which it is registered. Infringement can also occur where a mark is used on counterfeit products, or in a way that damages the reputation of the mark.

In digital marketing, such as Google Ads, trade mark infringement is a risk as well. Using a brand name in advertising copy without permission can lead to legal action.

The use of a name, logo or other signs closely resembling a registered trade mark can mislead consumers. They may think there is a connection with the mark where there is none. That is damaging for the trade mark proprietor, who can take action against it.

What can I do if my trade mark is infringed?

As a trade mark proprietor you have a number of options for acting against infringement:

1. Contact the infringer: Sometimes infringement is unintentional and a simple, friendly warning is enough to stop the use.
2. Send a cease-and-desist letter: A formal demand that the infringer stops using your mark immediately. It often also demands damages or some other form of compensation.
3. Take legal action: If the infringer does not respond to a cease-and-desist letter, or refuses to stop, you can go to court. You can ask for an injunction against use of the mark, for damages and, where goods are involved, for the destruction of the infringing products.
4. File an opposition at the trade mark office: If you notice that someone is trying to register your mark, or a term or logo resembling it, you can file an objection with the relevant trade mark office. That is known as filing an opposition.

What is an example of trade mark infringement?

One party that has to deal with a great deal of trade mark infringement is Nike. The well-known swoosh logo is all too often placed on shoes that Nike did not produce. Nike can act against those counterfeit goods by relying on its trade mark rights. Adidas faces trade mark infringement as well, for instance where other companies use multiple stripes on garments resembling the familiar Adidas design. Infringement of that kind causes confusion among consumers, who wrongly believe the goods come from the original trade mark proprietor.

Trade mark infringement can have far-reaching consequences, for the proprietor and for the infringer alike. It is therefore important to inform yourself properly, whether you want to register a new trade mark or want to act against a third party you believe is infringing yours.