Houston Trademark Infringement Attorneys
We Help Clients Pursue or Defend Trademark Litigation and Infringement Claims
Don’t let a competitor leverage your brand’s goodwill by infringing on your trademark. If your brand or a similar name is being used by another business in a way that creates confusion among consumers, you can pursue legal action.
At Hendershot Cowart P.C., our intellectual property attorneys have cultivated a record of success representing clients in both state and federal court over trademark infringement. Backed by more than a century of collective experience, we help established businesses and entrepreneurs on both sides of the table pursue resolutions to infringement claims.
The legal remedies for trademark infringement can include injunctive relief (ordering the infringing activity to stop), monetary damages, attorney's fees, and more. Trademark laws exist at both the state and federal level, so it's important to consult with an attorney with experience in intellectual property law both in Texas and nationwide.
On This Page:
- Where You Register Your Trademark Impacts Your Enforcement Options
- Trademark Protection in Texas
- Trademark Protection at the Federal Level
- Legal Remedies for Trademark Infringement
- Examples of Trademark Infringement
- Defending Against Trademark Infringement Claims
- Protect and Defend Your Trademark With Texas Trademark Infringement Attorneys
Texas businesses can register a trademark at the state level or the federal level. Texas also offers common law trademark protection under the Texas Business and Commerce Code. Where and whether you register your trademark has implications on the scope of your trademark’s protection and your enforcement options.
According to the Texas Secretary of State, a trademark is something “used in connection with tangible goods or products” and defined by statute as “a word, name, symbol, or device, or any combination of those terms, used by a person to identify and distinguish the person’s goods from the goods manufactured or sold by another.”
Under Texas law, you do not have to register your mark to protect your rights, as Texas recognizes certain common law rights in this regard. However, common law trademark protection is generally limited to the local or regional area where the mark is used and has become associated with your goods or services.
Registering your trademark in Texas with the Secretary of State gives you statewide protection and the ability to seek statutory damages and attorney's fees in case of legal action.
Trademark law in the U.S. is primarily governed by the Lanham Act, also known as the Trademark Act of 1946. The Lanham Act outlines the procedures for trademark registration, the rights and remedies available to trademark owners, and the rules surrounding trademark enforcement.
Federal trademark registration is handled by the United States Patent and Trademark Office (USPTO) and offers trademark protection in all fifty states and U.S. territories subject to U.S. trademark law.
Deciding whether to register your trademark at the state or national level depends on where you do business now and where you plan to do business in the future. If you have broader commercial ambitions or need nationwide protection, you may want to consider federal trademark registration through the USPTO.
Legal remedies for trademark infringement vary by jurisdiction and depend on where and whether a trademark is registered. Here are some of the legal remedies that may be available to you:
- Injunctive relief to stop trademark infringement
- Recovery of monetary damages
- Punitive damages in cases of bad-faith infringement that led to serious consequences
- A required accounting and/or disgorgement of profits
- Destruction of the infringing counterfeits or imitations
- Recovery of attorneys’ fees
Have questions about trademark litigation? Contact us to speak personally with an attorney about your situation, rights, and options.
Trademarks are distinctive symbols, words, phrases, designs, or other identifiers used to distinguish and protect the source of goods or services in commerce. Infringement can occur when a third party uses a similar or identical mark in a way that causes confusion among consumers regarding the origin or sponsorship of the goods or services being offered.
Examples of trademark infringement may include:
- Unauthorized Use of a Logo: If a company uses a logo that is identical or exceedingly similar to another company's registered trademark without permission, it constitutes trademark infringement.
- Counterfeit Goods: Producing and selling goods under a well-known brand name without the brand owner's consent is a clear case of trademark infringement.
- Domain Name Squatting: Registering a domain name that includes a trademarked name, word, or phrase intending to profit from the trademark's reputation can be considered an infringement.
- Similar Sounding Names: Using a business name that sounds very similar to a trademarked name can also be considered infringement if it's likely to cause confusion among consumers.
- Misuse of Meta Tags: Using another company's trademark in the meta tags of a website to draw traffic can be considered trademark infringement.
- Imitation Packaging: Copying the packaging design of a product that includes trademarked elements is another example of infringement.
- Unauthorized Use of a Trademark in Comparative Advertising: While comparative advertising is legal, using another company's trademark in a misleading or unfair manner could be considered an infringement.
- Selling Unauthorized Merchandise: Selling merchandise like t-shirts or mugs featuring a trademarked logo or character without the trademark owner's permission is also an infringement.
- Trademark Dilution: Using a famous trademark to dilute its uniqueness or tarnish its reputation, even if there's no confusion or competition between the products, can be an example of trademark infringement.
- Unlicensed Franchising: Operating a business under a franchised trademark without obtaining a license from the trademark owner is a clear case of trademark infringement.
To prevail in an infringement claim, the trademark owner must show that there is a likelihood of confusion between their mark and the allegedly infringing mark. Defenses to trademark infringement hinge on challenging the similarity of the trademarks and related products or services, and the likelihood of confusion among consumers.
Here are some common trademark infringement defenses your attorney may consider, depending on the specific facts of the case and the jurisdiction:
- Lack of Likelihood of Confusion: Infringement claims must meet the “likelihood of confusion” standard. Your attorney can challenge whether use of the trademark in question would likely cause consumers confusion about the source of the product or their own approval of that product.
- Fair Use: Similar to the fair use defense in copyright law, the fair use defense in trademark law allows for the use of another's trademark without permission in certain situations. Fair use typically applies when the use is non-commercial, descriptive, nominative, or critical, and it does not cause confusion as to the source of the goods or services.
- Descriptive Use: If the defendant uses a descriptive term or a term that is commonly used in the industry to describe a product or service, this may serve as a defense.
- Nominative Use: Nominative use occurs when the defendant uses the plaintiff's trademark to refer to the plaintiff's own products or services. This is often seen in comparative advertising or reviews where the defendant needs to identify the plaintiff's brand for context.
- Parody: A parody is a humorous or satirical work that comments on or critiques the original trademark. If the defendant's use is a clear parody and unlikely to cause confusion, it might serve as a defense.
- Abandonment: If the trademark owner has not actively used the mark or has shown an intent to abandon the mark, the defendant may argue that the mark is no longer valid or enforceable.
- Consent: If the trademark owner granted the defendant permission to use the mark, this can serve as a defense. Consent can be explicit or implied.
- First Use and Seniority: If the defendant can establish that they were the first to use the mark in commerce and have acquired common-law rights, they may argue that they have superior rights to the mark.
- Statute of Limitations: If the plaintiff waited too long to file a lawsuit after discovering the alleged infringement, the defendant may raise the statute of limitations as a defense. The statute of limitations for trademark infringement in Texas is four years.
If you're facing a trademark infringement claim or need to defend your use of a mark, contact our law office immediately.
The business and intellectual property attorneys at Hendershot Cowart P.C. are ready to provide the necessary guidance and support to secure and defend your trademark, protect your brand reputation, and mitigate disruptions to your business caused by infringement or infringement claims.
In addition to defending or pursuing trademark infringement claims, we also assist clients with proactive measures to protect intellectual property against infringement, such as trademark and copyright registration, licensing agreements, and company policies.
Our Texas-based attorneys can provide legal counsel in all trademark matters, including:
- Assessing suspected infringement
- Trademark monitoring and enforcement
- Assessing company policies to identify risks to intellectual property
- Sending a cease-and-desist letter
- Litigation representation
- Registration of trademarks
- Trademark search and clearance
- Trademark opposition and cancellation proceedings
If your trademark has been infringed upon, or you have been accused of trademark infringement, reach out to Hendershot Cowart P.C. to schedule a confidential consultation.
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