Major corporations aren’t always going to respect the trademarks of start-ups and small businesses.
Take Facebook’s news app ‘Paper’.
They essentially copied the name of the new app from the small business FiftyThree.
In this situation, FiftyThree was completely powerless to stop it.
But what should you do to defend your business if a major corporation steals your trademark?
Related Article: The In-N-Out Effect: Trademark Mistakes You Need to Avoid
Stop It From Happening Is the Best Solution
Major corporations aren’t stupid and they’re rarely ignorant of what’s going on. When they create a new product they have legal teams figuring out whether they’re infringing on someone else’s trademark or not. If they think they can get away with it, they will.
The best course of action is to simply prevent major corporations from stealing your trademark in the first place. We’ll go more into how you can do this later.
Corporation X Has Stolen My Trademark: The First Step
To begin with, your first course of action is to figure out what grounds you have to stop this. If you find out that the trademark infringement is on a generic word there’s little you can do.
The worst thing you can do is to attempt to take a major corporation to court when you’re not 100% sure you can win. Perform a basic check by seeing whether your trademark is something in regular use and whether the corporation is actually infringing on the precise trademark you filed.
Let’s go back to the FiftyThree example. In this case, Facebook didn’t infringe because the trademark was ‘Paper by FiftyThree’ not ‘Paper’ itself.
It went against the spirit of business, but from a legal standpoint there was nothing the company could do to stop Facebook.
Approach a Legal Expert
If you’re sure that you have a case, now is the time to bring in a legal expert. Don’t file any legal papers yet. You need to understand what you’re getting into by discussing the case with someone who knows what they’re talking about.
They will be able to tell you the following:
- How likely the opposition is to comply to your request to cease infringing upon your trademark.
- The rough time frame if legal proceedings should go forward.
- How much you need to successfully fight your corner, and the proportion of costs you can claim back.
Taking on a corporation is no easy task. If the infringement is minor, or it doesn’t really impact your company, don’t feel like you have to fight it.
For example, if you have a project in the works and you’re calling it ‘X’ you shouldn’t feel the need to fight a trademark infringement before the product is released to the general public. You can easily alter the product name without any harm done.
Never launch a case based on principles.
Related Article: Are Hashtags Intellectual Property?
Start With a Cease and Desist Order
You may be in a situation where a major organization has simply released a product under a name they didn’t know was in breach of an existing trademark. Begin proceedings by sending them an official cease and desist order.
A cease and desist order is, at its heart, a warning. It’s a request for the corporation to stop infringing upon your trademark. If they agree, no further action will be taken and the matter won’t be raised again.
This is often the spark that’s needed to gain your trademark back. Many companies will know that you’re serious and they won’t want the hassle of legal action, particularly if they’re fully aware that they’re in the wrong.
If they ignore the cease and desist order, or come forward and refuse to acknowledge it, you move to the next step.
Legal Proceedings Begin
This is where things can get messy. Legal proceedings can take a long time to resolve, but if you have issued a cease and desist order and it hasn’t solved anything you have no choice. This could last for years, particularly if it’s a tight case.
But what can you expect to get out of it?
- You will force the corporation to stop infringing on your trademark.
- You can claim back your business and become the sole owner of your trademark again.
- You can potentially get back the legal costs from the other party.
Prevention is the Best Option
As we mentioned previously, the best way to fight trademark disputes is to not get into them in the first place. This section will give you some useful tips to bear in mind when considering filing a new trademark.
To begin with, you have to remember that just because practically anything can be trademarked doesn’t mean it’s enforceable.
Avoid trying to trademark a term in common usage. If we go back to FiftyThree, we can see that the trademark related to a general term. Facebook can easily argue that it’s such a common term that it can’t be trademarked.
Make your trademark truly unique and avoid using any common words entirely. Realistically, the common word part of the trademark can’t be enforced, so it’s pointless filing it.
Don’t make the mistake of assuming that your unique creation hasn’t already been trademarked in some way. A great example comes from the craft brewing industry. Puns on the term ‘hops’ are common. The chances are someone has already come up with the pun you wanted to use.
Make sure you check for trademarks, not only general trademarks but trademarks relating to your specific industry. This is easy to do online.
Related Article: 4 Ways to Protect Your Business from Lawsuits (Hint: EPLI Insurance)
Fighting a Major Corporation Can Be Done
While we have argued in favor of prevention, don’t lose heart. If you’re the victim of trademark infringement, don’t feel as if you have to give up and look elsewhere. You can fight major corporations and win.
Yes, it will be expensive and yes it will be time-consuming, but if you’re in the right you’ll get all that money back and your business will be back to how it was before.
It just requires due diligence on your part when considering whether it’s worth launching legal action and whether you can get the outcome you want.