How to Enforce a Trademark

Owning a trademark gives you the right to prevent others from using the same or a similar trademark in a certain ways. However, as with patents, the responsibility of enforcing and maintaining your rights to that trademark falls on your shoulders.

Difficulty: Moderate

Instructions

Things You'll Need:

• Telephones
• Personal Organizers
• Computers

1. Register your trademark with the Patent and Trademark Office (see " How to File for Federal Trademark Registration," under Related eHows). This process takes one to two years.

2. Publicly declare your claim of ownership in the trademark: While the registration process is still pending, put your trademark on all products and/or literature, and follow the trademark with the ' superscript. After the trademark is actually registered, replace the ' superscript with the ® symbol.

3. Be on the lookout for infringing trademarks: a competitor's trademark used on competing goods or services; a competitor's trademark that causes consumer confusion; or a similar trademark used in the same part of the country or through the same distribution channels.

4. If your trademark is infringed, assert your ownership rights: Send the infringer a "cease and desist" letter. Attempt to negotiate or mediate the dispute. If necessary, file an infringement lawsuit and seek temporary injunctive relief as well as damages.

5. If you have evidence that someone registered your mark as an Internet domain name to prevent you from using it for the same purpose, or for the purpose of selling the domain name back to you, you can file a lawsuit to capture the domain name for yourself and possibly collect damages. You can also, alternatively, seek arbitration under the ICANN dispute resolution policy.

Tips & Warnings

• If your trademark is federally registered, it will be much easier to sue those who infringe upon it. Courts then presume you have exclusive ownership of the trademark. However, you may still sue to protect your rights as a trademark owner even if the trademark isn't registered.
• To win an infringement suit, you'll have to show either that the infringement could cause customer confusion (meaning that consumers might confuse the infringer's products or services with your products or services) or that your trademark is so well-known that the infringer's use of it has 'diluted' its distinctiveness or its reputation for quality. If your mark is recognized by consumers or inherently distinctive, your chances of a successful outcome are greater than if your mark is unknown and ordinary (see "How to Choose a Trademark," under Related eHows).
• Although it may be necessary to file a lawsuit to enforce your rights, the better course is to negotiate and, if necessary, mediate the dispute prior to litigation. Your chances of a successful outcome will depend on how flexible you are prepared to be.
• Trademark infringement lawsuits almost always require the services of a lawyer and therefore are usually very expensive. Attorney fees may be awarded in exceptional cases, but most often each side pays their own attorney. Carefully consider all your options, including ignoring the infringement or choosing another mark, before heading off to court.
• This information is not intended as a substitute for personalized advice from a knowledgeable trademark lawyer licensed to practice law in your state. For specific, up-to-date advice geared to your specific situation, consult an expert.

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[kicks42]

on 8/23/2009 If I have a trademark and suspect an entity of infringing upon it, can I let it go? Or will I give up trademark rights by not enforcing it?
Like if a much smaller entity shows no real threat to my products' prosperity, so I 'open the floodgates' so to speak, or actually forfeit any rights by not