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Enforcing trademark rights

Zara Nan, February 9, 2024

Trademark owner may prevent unauthorized use of trademarks to an extent similar to its trademark depending on different factors such as its trademark being registered or not, the similarity of the trademarks involved the similarity of the products or services within, and whether the owner’s trademark is well known cease and desist declaration.

Some jurisdictions (especially Common Law countries) offer protection for the business reputation or goodwill if a trademark has not been registered, which attaches to unregistered trademarks through the tort of passing off. Passing off may provide a cure in a scenario where a business has been trading under an unregistered trademark for many years, and a rival business starts using the same or a similar mark.

If a trademark has been registered, then it is much easier for the trademark owner to practice its trademark rights and to enforce these rights through an infringement action. Unauthorized use of a registered trademark need not be intentional in order for infringement to occur, although damages in an infringement lawsuit will generally be greater if there was a mal intention.

Infringing use may occur for trademarks which are considered to be well known, where the use occurs in relation to products or services which are not the same as or similar to the products or services in relation to which the owner’s mark is registered.

Limits and defenses to claims of trademark infringement

Trademark is has several defenses and limitations. The fair use defense in the United States protects uses that would be otherwise protected by the First Amendment. Fair use may be ensured on two grounds, either that the alleged infringer is using the mark to describe accurately an aspect of its products, or that the alleged infringer is using the mark to identify the mark owner.

An example of the first type is that even if Maytag owns the trademark “Whisper Quiet”, makers of other products may label their goods of being “whisper quiet” so long as these competitors are not using the phrase as a trademark.

An example of the second type is that Hyundai can run advertisements saying that a trade publication has rated an Hyundai model higher than a Mercedes model, since they are only using ” Mercedes ” to identify the competitor

Wrongful or groundless threats of infringement

To prevent trademark owners from making wrongful threats of trademark infringement action against other parties, various jurisdictions have designed laws. Large or powerful companies are protected by these laws to prevent them from intimidating or harassing smaller companies.

Where one party threatens to sue another for trademark infringement, but does not have a genuine basis or intention to carry out that threat, or does not carry out the threat at all within a certain period, the threat may itself become a basis for legal action.

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