Protecting Your Food Product From Trademark Infringement
July 24, 2019
The next step to take after registering a food product trademark is to protect it. When someone uses your brand's intellectual property, or IP, he or she may be committing trademark infringement. There are generally a couple of ways in which this breach may occur:
Sometimes, individuals copy the idea outright.
People can have the same ideas for something not realizing it may belong to someone else.
Ideas and differentiations are still too similar to another brand.
When left unwatched, any of these reasons could result in another company illegally profiting from your idea. The entire reason for registering a trademark is so that you prevent other companies from blatantly using your insignia. You are also covered if they are using one that is too similar.
Steps to Take after Discovering Trademark Infringement
If you find that trademark infringement has occurred, what course of action should you take? Here are a few tips for what to do when addressing trademark infringement. Keep in mind that every case is unique; speaking with a California food law attorney to gain legal insight into your situation is a good first step.
Write a Cease-and-Desist Letter
After discovering the infringement, writing and sending a cease-and-desist letter is often a good idea. This is essentially a letter that demands the person or company to stop using you trademark. Your lawyer may include a reminder that continued infringement may result in a lawsuit filed with proper jurisdiction and court venue. A letter would suggest that the infringer needs to stop within a certain period of time, such as five business days, for example.
If the company disregards your letter, it can be submitted as evidence that you attempted to amicably work out the dispute outside of court. Many trademark owners prefer working with an attorney to draft and send the letter. The idea is that the letter may be taken more seriously coming from a law firm.
Become Familiar with Legal Considerations of IP Infringement Lawsuits
If your cease-and-desist letter is disregarded, then you may decide to initiate a lawsuit. There are several elements that you may be able to allege in your trademark infringement lawsuit.
The Trademark Infringement Test
The first step is to decide if the trademark infringement has occurred in the eyes of the law. Your attorney and the courts will use the trademark infringement test. It will identify the likelihood of consumers confusing your business with another's. Its formal statutes are under the Lanham Act 15 USC 1114 (a)(1).
Use in Commerce
Use in commerce is the first thing a court considers. If someone has been using your trademarked work to aid in buying or selling their products or services, then a lawsuit will not commence. The courts are available to help businesses that lost money.
Likelihood of Confusion
When we discuss the likelihood of confusion, we are trying to determine if customers are “confused” by the similarity of the trademark. Courts considering this factor when making a decision. The factors that make up the likelihood of confusion are known as the “Polaroid Elements,” which came from a 1961 lawsuit between Polaroid Corp. and Polarad Electrics. The elements considered consist of whether:
The trademark is used in the same geographic location,
The likelihood of confusion was in play, and
The trademark is being used by a direct competitor.
Again, these factors are used in the court’s decision-making process in determining if trademark infringement, in fact, has occurred.
Final Thoughts and Considerations
Trademark infringement of food products occurs every day. Protect your best assets with the help of an experienced food law attorney in California. At De Cárdenas Law Group, we provide aggressive representation to your business. Call our office at (626) 577-6800 to schedule a meeting with our legal team.