How to Defend against Trademark Infringement Claims
How to Defend against Trademark Infringement Claims
A trademark is a symbol, phrase or word that sellers and manufacturers use to distinguish themselves and their products from the other manufacturers and sellers in the market. According to the trademark laws, if a manufacturer or a seller owns a trademark that they are using for their products, other parties who decide to use the trademark subsequently can be sued. If you find yourself sued for trademark infringement, you need to know how to defend yourself against the claims to avoid losses. www.pandapatent.com, one of the most experienced companies in this field provides some insight on how to protect yourself when sued.
Usually, there are some arguments one can use in their defense. These are:
Fair use or collateral use
With the “Fair Use” line of defense, the defendant argues that their use of the trademark was not for purposes or promotion or designation of their goods. The argument can be that they used the mark in a nominative manner or for descriptive purposes only. The use of a trademark for illustrative purposes is allowed by the law if one uses it in good faith and for its primary meaning and not secondary. Nominative use is the using of another party’s trademark for purposes or identifying the products of other producers and not for promoting something else.
Another angle of defense that one can use if they are sued is the collateral use argument. It is when a person uses an item that is already trademarked just as part of another more significant product or project. The collateral doctrine allows the use of the trademark by the defendant provided they do not lie to their consumers and make them think that the products are being marketed by the owner of the brand.
Fair use is a very common and widely used defense for trademark infringement claims.
Doctrine of Laches
Laches is another arsenal one can use to fight their trademark infringement case. The terms Laches emerges from the term “lasche” which is an old French term whose meaning is close to negligence. It refers to the plaintiff’s unreasonable delay in bringing the trademark infringement claims. When taking on this line of defense, you will be asserting the fact that the plaintiff did not raise the allegations early enough and it is out of time. The doctrine of laches is mainly used as an affirmative defense in equity cases.
Parody
Parody is, also, an acceptable line of defense in a trademark infringement case. They are adequate because parodies are believed to serve an editorial and artistic societal purpose. Also, to some degree, parodies are protected by the law under free speech. Just as the meaning of the name hints, the parody defense is used when the defendant wants to argue that they were mocking or sending an utterly opposite message compared to that of the original trademark. A parody frees anyone of any feeling or state of confusion as to who owns the trademark rights and who is responsible for the parody.
However, when taking on this line of defense, one has to ensure that the parody makes explicit fun or sends the opposite message to the original trademarked message. It should be clear that the message sent is not the original trademarked idea. Also, the parody should not lead to any loss of value or finances to the original trademark rights owners.
Unclean Hands
It is one of the equitable doctrine defenses that come into play when the plaintiff’s conduct with regards to the trademark was unconscionable or illegal. The court usually invokes “unclean hands” if it determines that the plaintiff acted improperly such that their punishment outweighs the need for the defendant to be prevented from violating the trademark rights of the plaintiff.
Estoppel
Estoppel is, also, among the defense arguments that fall under the equitable doctrine defenses category. If the plaintiff assures the defendants explicitly or implicitly that they will not assert trademark rights, then it is unlikely that they – the plaintiff – will incur damages or obtain an injunction. In other words, this means that the plaintiff had no issue with the defendant using their trademark and, therefore, cannot back any claims of infringement.
To protect yourself against being sued for trademark infringement, ensure that you create a unique trademark that is easy to protect and defend if another party sues you. Trademarks are usually ranked from weak to very strong. Always aim to have a brand that lies in the “very strong” categories. The most reliable brands are those that are made up of term and marks that are entirely unrelated.
The things that the courts usually consider in such cases are the letters, their meaning, pronunciation and the impression of the consumers on the product. How closely related the goods are is, also, a determining factor. In case one is sued, they should hire a lawyer who is knowledgeable about the process and how best to defend them. It will help you avoid any losses financially and reputation-wise.
