If you've been sued for trademark infringement, understanding what is ahead can take a lot of the uncertainty and confusion out of the process. In order to prove the claim on the case, the other party must prove that you have used the trademark in commerce, your use of it was likely to cause confusion among the market, and they have accountable damages because of it. Not only do you need to understand what the consequences could be if you're found liable for infringement, you also need to understand what your options are to defend yourself against these allegations.
What Are The Consequences?
You may face any or all of a series of potential damage orders as part of your case if you're found liable. Here are some of the things you might experience:
If you're issued an injunctive relief order, that means you have to stop using the trademark in question according to the terms of the order. Sometimes it's a sweeping cease and desist order, and in other cases, it simply limits the ways in which you can use the mark.
Monetary damage orders leave you having to pay the trademark owner for any loss of earnings that the court deems fit. You may even have to pay a punitive amount simply for your infringement.
An accounting order will require that you account for any profits you made as a result of your use of the trademark. You may also have to pay for the attorney's fees of the plaintiff depending on the case, though that is not a common order.
How Can You Defend Against Trademark Infringement Claims?
Whenever possible, it's in your best interest to mount a sound defense against the claim. In order to do that, however, you'll have to have a reasonable defense that you can use. Here are some of your options:
In some cases, you may be able to have the claim dismissed if there is no risk that your use of the trademark could have possibly caused any confusion among their market. For example, if your business is in one state and the other party's business is in another, then it isn't likely that their customers could be confused by your use of their trademark in your market.
If you were using the trademark in your market in any way before the other party used it, you might be able to claim prior use. However, in order to claim this, you'll need to be able to actually show proof of your use of the trademark with clear evidence that it pre-dates the other party's use.
If it was clear that the other party knew you were using the trademark for an extended period of time before they filed the suit and you can prove their knowledge, you may be able to have the charges dismissed for an excessive delay before bringing the lawsuit. The same applies if they failed to file an objection with the patent office, as that can be seen as unspoken agreement with your use of the mark.
Some cases with a trademark that's only been used for a few years will be dismissed due to reasonable lack of knowledge. If it's reasonable to assume that you may not have known about the existence of this new trademark, that's a sound and viable defense.
If you can prove that the other party created and used this similar trademark in an effort to create confusion, you might be able to have the case dismissed for deliberate action.
Finally, you might be able to claim fair use in some situations. If the trademark isn't particularly unique or distinctive, you could claim that your use of it falls under fair use. The idea is that the trademark is a commonly used term or image, so you have the right to use it according to the fair use laws. This is a very effective defense if the trademark in question is still in the open contest stage.
Reach out to a professional well-versed in business litigation to help you be successful in your case.