A trademark infringement lawsuit can arise when an individual or company uses another company's trademark in a way that could cause market confusion. An organization can be sued if they use words, phrases, or images that are likely to result in being mistaken for another business. While trademarks were once regional, global commerce via the internet has increased the likelihood that market confusion will occur. 

Trademark lawsuits typically cost between $120,000 and $750,000. The cost for trademark lawsuits depend on a variety of factors. These lawsuits can also take several years to be resolved. Small and large businesses alike are harmed by this significant drain on resources. In addition, large businesses run the risk of damage to their reputation if they are sued for trademark infringement and the infringement case is reported in the media.

Is it Really Trademark Infringement?

Registering your trademark provides national protection for your trademark within your specific industry. Having your trademark federally registered creates a stronger infringement case if another company in the same industry is using a similar trademark. Even without a federally registered trademark, however, you are protected from infringement within your own state and industry.

Thoughts Before Bringing a Trademark Infringement Lawsuit

You have several enforcement options if you believe another company is infringing on your trademark. While a cease and desist letter is inexpensive and can be effective, more serious cases of trademark infringement may require a lawsuit for resolution. These are the considerations to keep in mind before suing another company for trademark infringement:

  • Understand your intellectual property rights and business model. In your lawsuit, you will need to prove that your trademark is registered and you have a record of the date when it was first used in the marketplace. You'll need to make sure that you were using the trademark in commerce before the other party and that your registration has not lapsed. You should also note whether you have ever assigned the rights to your trademark or been assigned these rights by another party. Understand how much you spend on trademark-related marketing and note any instances of marketplace confusion that have occurred.
  • Consider whether it will be worth your time, energy, and resources to sue. Weigh the financial cost of another business using your trademark against the cost of a lawsuit. You'll have to pay monthly attorney bills for the duration of the lawsuit, which could stretch to several months or years. Sometimes attorney fees can be recouped from the infringer, but this only occurs after you win the case. Lawsuits make the most sense for high-end companies who rely on the substantial value of their brand.
  • Learn whether you'll be able to recover attorney fees. Most states do not require the defendant to pay the attorney fees of a plaintiff who wins an infringement case. Exceptions include North Carolina, Wisconsin, Colorado, and Puerto Rico. In several other states, judges can award attorney fees at their discretion. Even if you are victorious, the defendant may be insolvent and thus unable to pay for your attorney fees. Think about what your goals are for the lawsuit. Are you willing to settle for a certain dollar amount, or do you simply want the use of your trademark to be discontinued?
  • Learn whether you'll be able to recoup your attorney fees in federal court. Your trademark infringement case will be tried in federal court if the infringement occurred in several states or territories or in another country. Federal court awards attorney fees to the plaintiff who wins only when the trademark infringement in question was obviously committed with intent. In most courts and most situations, each side is responsible for its own attorney fees.

An experienced trademark attorney can help you consider these questions and provide guidance if you decide to move forward with a lawsuit. 

Litigation Short of Trial

When you file an infringement lawsuit, you can ask the court for emergency relief. This prevents the other company from using your trademark until the case goes to trial. This strategy often encourages the defendant to reach a favorable settlement.

If you need help with a trademark infringement lawsuit, you can post your job 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, Stripe, and Twilio.