Trademark infringement


A trademark is a unique mark of identification for an individual or business allowing them to differentiate their company, products or services from those of competitors.

Trademarks are typically in the form of a name or word but can also be represented graphically.

What is trademark infringement?

A trademark is only protected from infringement if it has been registered, in which case the owner of the trademark may commence legal proceedings against a party which infringes that registration.

A trademark which is not registered cannot be infringed as such, and the trademark owner cannot bring trademark infringement proceedings.

Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorisation of the trademark owner or any licensees. Trademark infringement may occur when one party, the ‘infringer’, uses a trademark which is identical or similar to a trademark owned by another party in the course of a trade.

The main types of infringement are:

  • Use of an identical sign for identical goods or services
  • Use of an identical or similar sign for similar goods or services leading to a likelihood of confusion
  • Use of an identical or similar sign if the use is detrimental to or takes unfair advantage of the original trademark

A party accused of trademark infringement may be able to defeat infringement proceedings if it can establish a valid exception e.g. comparative advertising. There are also defences to infringement such as invalid registration of the trademark or honest use of the trademark.

Passing off

In the case of unregistered trademarks the common law of passing off applies. Passing off actions can be complex and costly. Whether a passing off action will be successful at court depends largely upon the degree of similarity of the marks, considered in the context of the markets in which the products or services exist.

A passing-off action requires proof that you have built up a reputation in the mark, and that you have been harmed in some way by your competitor’s use of the mark. The court will consider:

  • Whether the similarity of the marks would be likely to confuse and deceive a substantial number of persons
  • Whether damage would result to the goodwill of the business if the infringement were allowed to continue

If you would like to bring infringement proceedings against someone or have had infringement proceedings brought against you then it is very important that you seek legal advice immediately. Ignoring the problem can be seen as an acceptance of the infringement in the eyes of the law, and slow intervention could have hugely detrimental effects on your case.

For a concrete example of trademark infringement in the media, see our article on One Direction and trademark infringement.

Has another company used your trademark illegally, causing you to suffer loss of business? Contact Law can put you in touch with a specialist intellectual property solicitor who can help you to resolve the dispute before you suffer any further financial loss. Please call us on 0800 1777 162 or complete the web-form above.

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