Report Trademark Infringement: Everything You Need to Know
To report trademark infringement, the trademark owner needs a clearly established record of possession. 3 min read
2. What Happens After You Send a DMCA Notice
3. Receiving a DMCA Notification
To report trademark infringement, the trademark owner needs a clearly established record of possession. He or she can also get the trademark registered to show ownership. If an identical or similar trademark is being used by another entity, you can have it removed from the market by suing for trademark infringement in civil court. However, you'll need to prove that the infringer made confusion among consumers more likely, meaning that customers could misunderstand which company is providing which good or service. If two companies are using similar trademarks, people could get confused.
To prove trademark infringement, the plaintiff, usually the trademark owner, must show that he or she has clearly established ownership. It can be through use over time or through registration with the United States Patents and Trademark Office (USPTO).
If there's confusion between two trademarks, the one that's registered with the USPTO will usually win in court. However, the only remedies for an infringement case are an injunction against the infringing company that stops them from using the trademark and sometimes monetary restitution for attorney fees or lost profits.
You only need to report trademark infringement to the United States court system. The trial shouldn't be long or complicated as long as clear ownership of the trademark is established. You can report trademark infringement to the infringing company through the DMCA or Digital Millenium Copyright Act.
If someone is using your copyrighted or trademarked material on their website without your permission, you can file a DMCA complaint against that person or company. Section 512(c)(3)(A) of the DMCA requires that notices, complaints, and reports of copyright or trademark infringement contain:
- The physical or electronic signature of the owner of the infringed trademark or an authorized representative
- Identification of the copyrighted work or trademark that was infringed upon
- Identification of the material that's infringing on your copyright or trademark and enough information to let a person or company locate and remove it
- Contact information for the complaining party, like an address, a phone number, and an email address
- A statement of your good faith belief that infringement occurred
- A statement that all the information in the complaint is accurate under penalty of perjury
- A statement that the complaining party is the copyright or trademark owner or that they're authorized to act on behalf of the owner
Without all this information and the correct formatting, the company you send your complaint to will not remove the infringing material. Most people and businesses send DMCA complaints to the company that hosts the infringing website.
What Happens After You Send a DMCA Notice
If your notice complies with all the requirements of the DMCA, the infringing company will be required to remove or disable access to any infringing content. However, you could be held liable for damages, including lost profits and legal fees, if your DMCA notice contains material misrepresentations inaccurate information. If you're not absolutely sure that your trademark or copyright has been infringed upon, consult an attorney before you file a DMCA complaint. Most companies let alleged infringers know about any content that was removed and provide a copy of the DMCA notice.
Receiving a DMCA Notification
If you get a DMCA notice and you believe that your content shouldn't have been removed, you can file a counter notification. A valid counter notification requires the same types of information as a DMCA notification, including a physical or electronic signature from the owner or a representative, contact information, a detailed description of your content, and a description of the filing company's content. In short, you should be able to explain why your content is not infringing on the opposing company's content.
Many web hosting companies and other businesses will forward a copy of your counter notification to the entity that filed the DMCA notice. Without a prompt response, the web hosting company will usually make your content accessible again. However, different businesses have different DMCA policies. Some favor free speech by making removing content difficult, while others favor trademark rights by getting rid of infringing material as quickly as possible.
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