It may come as a shock if you receive a trademark cease and desist letter, which claims prior, exclusive rights to a mark and demands you to stop your use of the mark. What’s worse is if you get served with a notice of a lawsuit. Continue reading to learn what defense you can take if you have a trademark infringement allegation against you and how an experienced New Jersey intellectual property litigation lawyer at The Ingber Law Firm can best represent you.
What is trademark infringement?
According to the United States Patent and Trademark Office, trademark infringement is considered to be, “the unauthorized use of a trademark or service mark on or in connection with goods or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods or services.”
So, if a plaintiff makes a successful argument for trademark infringement against you, then you may be ordered to do any or all of the following:
- You may receive a court order to stop using the mark in question.
- You may receive a court order to destroy or forfeit the goods or services using the mark in question.
- You may receive a court order to pay any damages sustained by the plaintiff.
- You may receive a court order to pay for the plaintiff’s attorneys’ fees.
What defense can I take if I have an infringement allegation against me?
Of note, the most common defenses against trademark infringement allegations are fair use and parody. For one, you may utilize the fair use defense if you believe that your use of another’s mark was done in good faith. That is, your use of the mark was simply to describe the quality of your product, and there was no consumer confusion as a result. Secondly, you may utilize the parody defense if you believe that your use of another’s mark was simply artistic or editorial. That is, your use of the mark was not tied to commerce by any means.
Other common defenses for such an allegation include, but are not limited to, the following:
- You may argue that the plaintiff abandoned their mark.
- You may argue that the plaintiff misused their mark.
- You may argue that the plaintiff improperly licensed or assigned their mark.
- You may argue that the plaintiff’s mark has become generic.
- You may argue that the plaintiff had unclean hands and their conduct forfeited their rights to the mark.
- You may argue other reasons as to why the plaintiff is not entitled to prevail.
With all that being said, if you have an infringement claim against you, you must consult with a skilled Essex County, New Jersey intellectual property lawyer as soon as possible. Schedule your free initial consultation with us today.