You paid good money to an attorney to make sure your trademark was filed properly, you received your registration certificate and your business is running smoothly. But after a few years you find out that someone else is using a trade name that is very similar to your mark. You go to see an attorney to find out what you can do to stop it. Good news is you probably can stop it. Bad news is it's likely going to cost you a bunch of money that you stand little chance of getting back.
But that's not fair! It's your property. How can this be?
Trademark property is an ownership right that arises from exclusive use. It is up to the owner to protect that exclusivity. Unless someone else's use is deliberately infringing on your trademark, you will have to bear the burden and cost of protecting your property rights. While it might not seem fair, it is the nature of this type of property right. It requires maintenance.
Owning a trademark is like owning a car. To continue to run smoothly, cars need to be driven, they need gas, they need to be registered with the state and they need maintenance. In other words, it is not something you just buy, and the cost is done with. It costs money to use your car and keep it in working condition. With trademarks you likewise need to use it in the market place, you need to re-file your registration every so many years, and you need to defend it from infringement. Unfortunately, that usually means occasionally having to hire an attorney to help you defend it. Like with car maintenance, if you stay on top of it, you can keep the costs manageable.
If your trademark is being infringed and you do nothing, you could lose rights depending on the nature of the infringement. You may lose the use in a certain territory or for a certain market. You may lose the use for certain goods or services. To protect your mark, you should set up a system to monitor potential use of your mark. With the Internet, monitoring use is much easier since most business have some Internet presence. If you've recently registered a trademark, you have likely received advertisements in the mail from companies that will do periodic searches for you. Searches should be done frequently enough to catch infringing use early before the user has expended substantial capital in promoting the mark. The earlier you catch it, the easier it will be to get the infringer to back off the use. For this reason, if you are not going to pay a service to research the market for potential infringement for you, plan on conducting regular searches, at least quarterly, and stick to it.
Trademarks can be a powerful branding and marketing tool. It is a long term investment that is worth maintaining. If you understand that it a living asset that must be maintained, it won't feel as bad when the time comes to defend it.
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