Is Faking a Trademark Illegal?

Copyright and trademark laws can be complicated. Whether you’re building a new business and are working on getting your brand trademarked or are rebranding your business, knowing the ins and outs of what you can and cannot do to set up your trademark is tough. You want to make sure everything that makes your business yours is unique and singular to the brand, but you also want to make sure the business itself is protected. Knowing how U.S. trademark law works is vital to make sure you are not breaking any laws in your branding process.

What Is a Trademark?

According to the United States Patent and Trademark Office (USPTO), a trademark is any word, set of words, designs, symbols, or combinations of these elements that distinguishes your goods or services from others. When your brand is trademarked, it is protected from counterfeiting and fraud. This doesn’t mean you have ownership over certain words or phrases, though. You just have protection for how those words or phrases may be used in reference to certain services or products. For example, if you have a trademarked logo for your jewelry business, you cannot stop others from using a similar logo for a business that isn’t jewelry-related.

Registered Trademark Versus Owned Trademark

A registered trademark is one that has been registered through the USPTO. You are not required to register your trademark, but doing so can give you greater protection. You own a trademark once you begin using it in association with your services or products.

By using your trademark, you institute limited rights and protections. However, when you don’t register your trademark with the USPTO, it is only secured and protected in the geographic area in which you are located. If you want to start providing goods or services in a wider geographic area or expand to providing the goods or services online, you may want to consider submitting a federal registration for your trademark. This gives you the opportunity to protect your livelihood.

Trademark Dilution

Trademark dilution occurs when a third party uses a similar trademark that may tarnish or blur the reputation of an existing trademark. The trademark in question must be a famous one, such as McDonald’s or Starbucks.

Tarnishing happens when a famous trademark’s esteem is harmed through the association of a mark or logo that is similar. Typically, this occurs when the third party uses the name or logo in a manner that is distasteful.

Blurring

Blurring occurs when the association of a trademark lessens the uniqueness of its potential linkage to another company.

When a trademark is blurred, it can result in people starting to associate the trademark with a new and different product rather than the original one. For example, if a version of a well-known beverage’s logo started appearing on toothpaste, consumers could also start associating the beverage brand with the toothpaste instead of just the beverage.

To be declared a dilution by blurring, certain factors must be proven. These include:

• Similarity between trademarks
• The recognizability of the mark
• Intent to manufacture a relationship with the famous mark

Trademark Infringement

Trademark infringement occurs when a trademark is used without permission to do so. This is an unfortunate circumstance, but it happens frequently. Third parties attempt to take advantage of the fame of established trademarks all the time. This often happens when one business takes advantage of the name of a product or service and uses a name that is extremely similar.

Trademark Symbols

If you’re using your business’s logo, you can also pair it with the ™ symbol, for trademark, or the SM symbol, for service mark. Once the trademark becomes registered, you can also pair it with the ® or the ‘r’ inside the circle. You can only use the registration symbol if you’ve acquired a federal trademark. If you’re using the ™ or the SM symbols, that means you’re acknowledging that you are claiming the trademark.

Registering Your Trademark

This might be the toughest part of the process. You’ve hired a graphic designer and had a logo made, or you’ve drawn one up yourself, and you think it passes muster. However, there are millions of trademarks in use and registered today. What you think is an exclusive design may be something already in use by another business. The search to make sure your trademark is indeed a unique one can be a grueling process — not only is it time-consuming, but it has to be exhaustive as well.

There is also a lot of paperwork involved as well. This is often the part of the process that trips people up. Filling out your paperwork thoroughly and filing it correctly is a vital part of getting your trademark registered.

First, you must note how you plan to use the mark you’ve created. This includes disclosing how this trademark will appear within the business. Second, additional trademarks may have to be registered for special goods or services within your business.

Is Faking a Trademark Illegal?

If you are knowingly selling a product under a false trademark, such as ‘knock-off’ designer goods, you’re committing a crime. Counterfeit goods are taken very seriously, and in some cases, you could be charged with a criminal offense, resulting in millions of dollars of fines and a prison sentence.

Do I Need a Lawyer?

Whether you are a business looking to register your trademark to protect your intellectual properties, goods, and services, or you’ve been charged with unfounded claims of copyright infringement, hiring the right lawyer is always a good idea.

Copyright laws are complicated and require a lot of research, as well as extensive knowledge of the laws themselves. An Orange County trademark attorney is your best resource to protect yourself, no matter what side of the issue you are on. If you need support to research and register your trademark, or you require legal representation, the team at Blake & Ayaz can provide you with the help you need. With over 60 years of combined experience, the attorneys at Blake & Ayaz have the skill and knowledge to protect you and your business, no matter how big or small. Contact us today to schedule your consultation and protect what matters most.