Key Takeaways

  • Trade name infringement occurs when a business name causes confusion with an existing trademark or trade name.
  • U.S. trademark law protects both registered trademarks and unregistered trade names through the “likelihood of confusion” standard.
  • Businesses should monitor for similar names and trademarks to proactively avoid legal disputes.
  • Legal remedies for trade name infringement include injunctions, monetary damages, and sometimes attorney's fees.
  • Trademark registration strengthens your claim and makes enforcement easier in infringement cases.

Company Name Trademark Infringement

For many, company name trademark infringement is a major business risk and deserves far more attention than many business owners give to it. With a little bit of work early on, you can save yourself a lot of problems down the line. Deciding on your business and product names can be tough, yet you also need to make sure it doesn't infringe on another person's trademarks.

Trademark Search

The best way to determine if your business name might be violating another's trademark is to do a thorough and professional trademark search. The trademark search should look for trademarks that are not only exactly the same but also ones that are similar and may cause consumer confusion.

Here are some statistics from 2016 that show just how prevalent trademark infringement, litigation, and enforcement is:

  • Most Litigious Plaintiff By Trademark Cases Filed: Coach at 730 Lawsuits
  • Federal District With Most Trademark Suits: California's Central District at 4,164
  • Defendant With Most Trademark Lawsuits: NFL at 548

It is clear that making sure your products and business name do not infringe on others' trademark is important, as the likelihood of a trademark lawsuit is significant otherwise.

Trademarks essentially are rights granted by the government to distinctive features and symbols of a business that help consumers recognize it and its brand. Service marks are just like trademarks, except they refer to services.

If a trademark is overly similar to another trademark, then they have a conflict.

Trademark rights are granted by first use. Essentially, the first person to use the completed trademark in business will have ownership over its rights, including suing those who use it otherwise.

Your company's and products' name and design will be how you represent yourself to customers. It is important to make sure that not only are they strong representations of your brand, but that they avoid potentially devastating trademark infringement.

Trademark Infringement Background

A registered trademark will give you various legal remedies and protections against those who infringe on your trademark. The result of trademark protections is that you will have exclusive ownership over a certain brand in the public market.

In the UK, various trademark laws allow companies to also have their names and brand challenged if they infringe on a trademark owned by someone else. This is intended to create clear barriers between different actors in the market.

The EUTMR is a European Union trademark regulation that also adds even more protection for trademarks.

What Is Trade Name Infringement?

Trade name infringement happens when a business uses a name that is identical or confusingly similar to an existing trade name or trademark. While a trademark protects brands, products, or services, a trade name identifies a company’s legal identity. U.S. law treats infringement seriously if consumers are likely to confuse the names, even if the names aren’t identical.

Infringement doesn’t require that the names be exactly the same—similar sound, appearance, or commercial impression may be enough if it causes consumer confusion. This is assessed using the “likelihood of confusion” standard applied by courts and the USPTO.

Action Required if Without Trademark

When your business and products do not have registered trademarks, it may be worthwhile to get a name monitoring service for companies.

Essentially, a name monitoring service notifies you about the incorporation of new businesses that fall under certain terms you designate. By receiving prompt notification of companies with similar names, you can file actions under UK and EU law to stop the use of names that may damage or confuse your brand.

A company monitoring service is different from a trademark monitoring service, which only monitors trademarks that are being applied for. The company watch will give you an earlier notification, at least for company names, and may help reduce more labor and cost-intensive litigation for full trademark infringement cases.

How to Respond to Trade Name Infringement

If you suspect another company is infringing your trade name:

  1. Document the Use – Collect evidence such as marketing materials, websites, and business filings that show how the infringing name is used.
  2. Assess Confusion – Determine whether consumers are likely to confuse the infringing name with yours.
  3. Send a Cease and Desist Letter – This formal notice requests that the other party stop using the infringing name.
  4. Initiate Legal Action – If informal resolution fails, you may file a trademark infringement lawsuit or seek relief under unfair competition laws.
  5. File with the USPTO – If your mark is unregistered, consider applying for federal trademark protection to strengthen your position.

It’s essential to act quickly, as delays may weaken your claim or lead to defenses such as laches (unreasonable delay).

Risks, Benefits, and Fees for Protecting the Brand Name

Your brand is a key part of your business. You should give it proper due diligence and ensure it is secure. If you don't keep vigilant, it may slowly over time result in the brand's decay.

Trademark monitoring primarily means keeping an eye out for new companies and trademarks. You will need to determine the specific monitoring services you wish to subscribe to and set aside the regular annual fees for those services. These services often will give you regular reports and, if action is needed, provide you with recommendations on how to proceed.

Often these services will offer a fixed fee, although some might have variable fee structures as well. These services help take care of the otherwise time-consuming work of constantly monitoring both company incorporations as well as trademark registration applications.

Best Practices to Prevent Trade Name Infringement

To reduce the risk of trade name infringement:

  • Conduct a Comprehensive Name Search – Go beyond a basic Google search. Check the USPTO database, state business registries, and domain names.
  • Register Your Name as a Trademark – While trade name rights can exist without registration, registration offers stronger legal protections.
  • Use the Name Consistently – Regular use of your business name helps establish priority and enforceability.
  • Monitor Competitors – Set up alerts or subscribe to monitoring services to detect similar names early.
  • Consult a Software or Trademark Lawyer – Especially before launch or expansion, an attorney can help assess risks and draft necessary legal protections.

Legal Consequences of Trade Name Infringement

If a business is found liable for trade name infringement, it may face serious legal consequences, such as:

  • Injunctions – Courts can order the infringing party to stop using the trade name.
  • Monetary Damages – These may include actual damages, profits earned from the infringement, and, in some cases, statutory damages.
  • Destruction of Materials – Courts may require the destruction of infringing products or marketing materials.
  • Attorney’s Fees and Costs – In exceptional cases, the losing party may be ordered to pay the prevailing party’s legal fees.

These remedies aim to protect businesses from market confusion and unfair competition.

Frequently Asked Questions

  1. What is the difference between a trade name and a trademark?
    A trade name identifies the business entity itself, while a trademark protects the brand or product name used in commerce.
  2. Can I sue someone for using a similar business name?
    Yes, if the name causes consumer confusion or harms your business, you may have grounds for legal action based on trade name infringement.
  3. Is registration required to protect a trade name?
    No, but federal trademark registration provides stronger enforcement rights and evidentiary advantages in court.
  4. What are common defenses to trade name infringement?
    Common defenses include fair use, lack of confusion, prior use, or abandonment of the mark by the plaintiff.
  5. How do I avoid committing trade name infringement?
    Perform due diligence before using a name—search existing trademarks and trade names and consult an attorney to evaluate potential risks.

If you need help with company name trademark infringement, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.