Keeping an eye on your trademark and flagging anyone else using it without your permission is an important part of maintaining control over your IP, ensuring trademark’s legal validity as well a sits commercial value. In the event you suspect someone is using your trademark, the first thing you so is seek professional advice before taking action yourself. Trademark infringement can be complex area within trademark laws. This means that what you think is clear cut case of an infringement may actually not be at all. While your first reaction may be to send a strongly worded “cease and desist” type of notification to the person you feel is in the wrong, this can often turn out to be very worst thing you do. This is because you may not understand all the intricacies of IP law, and your threats of legal action and other type of demand.
As a representation of business, trademark can be emotive thing, with many people becoming attached to their brand and overzealous when it comes to protecting it. Also, because of time effort,and cost that comes with going through the trademark registration process it is easy for people to think that they may infarct have more rights than they actually have which can further cause enforcement and protection complications. A Trademark professional will be able to give you some perspective act as an impartial third party, assess your situation to determine if an infringement has likely occurred, to narrow down what type of infringement it might be and give you advice on best possible course of action going forward. They will look at:
- Whether what you consider to be infringement of your trademark actually is one according to legislation. The law regarding trademark is detailed and complex and the factor that determine an infringement are numerous. For example, if you believe that someone in another country is using your trademark it will involve different set of legislation, regulation and rules to those in Australia or may be an infringement at all. The use of same or similar name overseas can now be quite common with global nature of the internet, so finding a trademark attorney who can navigate the relevant laws in another country is important.
- Who used the trademark first and what exactly is the scope of that prior use. If the potential infringement had occurred within Australia a trademark professional will look at the timing of use to see whether it was before and after you first used and registered your trademark.
- The category of goods and service the potential infringement falls into. IP Australia has differentiated the products and service of businesses, with categories ranging from dietary supplements and musical instrument, to clothing etc. Many seemingly obvious infringements will not actually constitute an issue because they fall into a different trademark category and/or are not used for the same kind of goods or services. For example, if you have a trademark that’s registered for providing real estate services, and someone uses your brand as a clothing label, it may not be classified as an infringement.