Over the past few weeks, I’ve discussed several recent cases involving two competitors claiming trademark rights in similar names. Hopefully the message from these cases is clear: if not inevitable, trademark disputes arise all the time, and when not appropriately addressed they can result in expensive (very expensive) enforcement costs, loss of business, and even re-branding campaigns.
The root of the problem in many contemporary trademark infringement disputes lies in the failure to actively police and enforce existing trademark rights. One of the realities of doing business this day in age is that new ventures are starting up all the time, and with the average entrepreneur not knowing the ins and outs of trademark law (or choosing to ignore even its most basic principles), online businesses are under constant threats to their brands and reputations.
As a result, developing an IP protection strategy is just what businesses do. It’s part of being in business, and accounting for the contingencies of operating in a dynamic people-driven environment is a necessity now more than ever. From this mindset, you can even think of an IP protection strategy as a sort of insurance: you may never need it, but you’ll sure be glad you have it if you do.
An example might help:
Imagine this: One day a customer comes to you complaining about a product they purchased recently, and demands a refund. You review your order history, and discover that you did not sell the product in the first place. However, the customer insists that they purchased the product from you, because they recognized your logo on the packaging. You do some research, and find out that a competitor has been using a trademark almost identical to yours for the past six months. When you contact the competitor, they refuse to change their logo, claiming that they adopted it innocently (although this is not a legitimate excuse), and anyway they purchased their domain name a long time ago, so they aren’t sure that you actually have prior rights. Plus, they have sunk a lot of money into marketing, and they aren’t going down without a fight.
Now imagine this: You receive notice that someone has purchased a domain name that is uncomfortably similar to your primary trademark. You contact the purchaser almost immediately informing them of your pre-existing trademark rights, and stating your intent to enforce them. The domain name lies dormant over time.
This is the value of trademark monitoring.
Trademark monitoring can also turn you on to instances of copyright infringement that you would not have discovered otherwise. If someone is going further than infringing your brands — and is also using or re-selling your content without authorization — there are efficient ways to deal with that as well. But if you never identify the issue in the first place, how will you know what needs to be done?
If everyone always played nice, knew all the rules, and did what they were supposed to do, then this would be a non-issue. Unfortunately, I don’t see that happening any time soon.
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