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What is trade mark infringement?
If you use an identical or similar trade mark for identical or similar goods and services to a registered trade mark - you may be infringing the registered mark if your use creates a likelihood of confusion on the part of the consumer or public. This includes the case where because of the similarities between the marks the public are led to the mistaken belief that the trade marks, even if it is different, identify the goods or services of one and the same trader.
Where the registered mark has a significant reputation, infringement may also arise from the use of the same or a similar mark which, although not causing confusion, damages or takes unfair advantage of the reputation of the registered mark. This can occasionally arise from the use of the same or similar mark for goods or services which are dissimilar to those covered by the registration of the registered mark.
What about unregistered trade marks?
There is no available remedy for trade mark infringement if the earlier trade mark is unregistered. Some unregistered trade marks may be protected under Common Law and this is known as Passing off. However, whether or not they are protected will depend on the particular circumstances, in particular:
Whether, and to what extent, the owner of the unregistered trade mark was trading under the name at the date of commencement of the use of the later mark;
Whether the two marks are sufficiently similar, having regard to their fields of trade, so as to be likely to confuse and deceive (whether or not intentionally) a substantial number of persons into thinking that the junior user’s goods and services are those of the senior user;
The extent of the damage that such confusion would cause to the goodwill in the senior user’s business.
What should you do when you think that you maybe infringing ?
Get legal advice. There may be a number of potential courses of action or defenses open to you, but this will very much depend on the particular circumstances of your case. We can help you find those grounds for defense.
We can help you choose a course of action when you think that you may be infringing an earlier trade mark. We can also help you to negotiate a way forward that suits both parties, which may include a co-existence agreement.
If you decide that you are not infringing, or you have a good defense, you may decide to stand your ground and fight your case. We can find you the best of the option for your defense, the best of the surveys to be done to prove that there is no consumer confusion. We use the best digital illustrations to demonstrate the difference in the logo to defend our clients.
I think that someone else maybe infringing, what should I do?
Get legal advice as the most suitable course of action will depend on the particular circumstances of your case. We can help you negotiate a settlement which suits both parties, which may involve a co-existence agreement. Or file and infringement suit to get a court order to force the infringer to cease trading and pay compensation for damages. In that case we have the best expertise to fight it out in the court.