A Tale of Trademark Infringement. Or is it?

Katy runs a successful shop and online business selling exclusive gift hampers. The business is called Beautiful Baskets and has earned a good reputation for service, quality and value.

Trademark infringement - or not?

One day Katy gets an irate email from a customer complaining that their hamper was full of cheap tat and not worth anything like the price they paid for it. After the initial shock (this sort of thing had never happened before), Katy contacts the customer.

It turns out that the ‘customer’ had bought the hamper from a business called Baskets of Beauty. With a bit of research she finds the Baskets of Beauty online store in the eBay marketplace. “Hmm, that logo and lettering look kind of familiar. Rather like mine, in fact.”

A bit more research uncovers some negative and completely unfair comments about her business online. Customers of hers have never said things like that. She is angry, frustrated and hurt that the business she worked so hard to build is apparently being imitated and damaged by a bunch of rip-off merchants.

What can you do if another business passes itself off as yours?

Where this story goes from here depends on a number of things. Most of all it depends on whether Katy has ever registered her brand identity as a trademark.

With registered trademark protection Katy can get her legal representative to write a formal letter to the other business. The letter will advise them of the trademark protection and the trademark infringement; it will specify a short period within which they need to stop using the name and logo, and request details of their sales figures so that the potential damage and loss can be assessed.

In reality the offending business has little choice but to comply – even if the copying of the brand identity was not deliberate.

With a registered trademark, protection against infringement is wide-ranging. It covers anything that a reasonable person would see as visually or phonetically similar. It also prevents anyone using your logo to promote their business by association and without your consent,

Unregistered rights are hard to enforce

Where would you stand if this happened to your business?

Would you be like countless businesses each year that end up in this situation but only have unregistered rights earned by reputation?

In this case you would have to prove that the other business is deliberately trying to pass itself off as yours. If the other business operates in a different geographical location it could be even harder to argue that your business is being harmed.

Trademark infringement  – do’s and don’ts

Do:

  1. Get the right advice. Reacting inappropriately to an apparent infringement can damage your case.
  2. Be vigilant and aware of your marketplace. Check for unexplained dips in sales or negative ‘customer’ reviews.
  3. Check Google and online marketplaces like eBay and Amazon for potential imitators.
  4. Get registered trademark protection if your business name and brand identity are critical for your business.

Don’t

  1. Assume that you are protected just because you’ve been using a name and a logo for a long time.
  2. Assume that registering an internet domain gives you any intellectual property rights – it doesn’t!
  3. Act hastily without getting advice if it looks like somebody is copying your identity.

Trademark infringement is an issue that many businesses assume will never apply to them – until it happens. Yet protecting your rights and having the peace of mind that imitators can be dealt with swiftly and reliably is relatively inexpensive.

Do you have an issue like Katy’s? Or are you wondering whether your business needs  registered trademark protection? Contact us for a free initial consultation.

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