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Someone is using my Trademark

Before concluding whether you’ve got a problem we need to know more information. Trademark infringement only occurs if it is likely consumers will be confused into thinking there is a connection between the source of the goods or services. For example, Delta Airlines and Delta Faucets both use the term “Delta" but no one thinks they are the same company.

On the other hand if you attempt to name your restaurant “Old McDonald’s," Ronald McDonald will quickly teach you that names can be infringing even if they are not identical – they just have to be similar. Similarity is measured in terms of the “Sight, sound and meaning" of the mark. Adding an “e" or making a name plural usually is not sufficient to distinguish a name that is otherwise the same.

We also have to ask why they are using your trademark. If you make Ford cars and someone says they have a used Ford for sale – that use is permitted. But if you make Ford cars and someone says they also make and sell brand new Ford cars – now you’ve got an infringement.

Of course remember infringement only occurs if confusion is likely. If you operate a local hot dog stand in Richmond Virginia, say Harold’s Hot Dogs, and later on another Harold decides to open up a Harold’s Hot Dog stand in Kansas City, then confusion is not likely because people in Kansas City are unlikely to be aware of the Richmond hot dog stand by the same name. But if your restaurant establishes a great reputation and becomes well known then courts have found that distant businesses can be found to be infringers.

The internet shrinks geographic distances and many businesses have websites so even if they are only located in Richmond Virginia they may be visible in Kansas City. Then we examine the extent of business conducted on the internet. Internet businesses certainly can be found to infringe on local operations.

Another common internet problem is when a business uses another company’s name to try to divert that company’s customers to their website. A company here in Richmond was recently quoted in an online new magazine as saying “the domain names were available" so he registered them to drive business to his website. The federal anti-cybersquatting law provides significant penalties for this behavior.

If you have trademark rights in your name and someone is infringing your mark possible remedies include making the infringer: (1) stop; (2) pay you all the money they made as a result of the infringement; (3) pay you any other damages; (4) destroy any remaining infringing product; and (5) pay your attorney’s fees.

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