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Recommend So You've Been Sued for Trademark Infringement (Email)

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“A messenger just handed me some papers. It looks like I’ve just been sued for trademark infringement. What’s this mean?”

I get this question often enough that I thought I’d summarize my answer. Here are the highlights:

1. The plaintiff’s rights. If the plaintiff has a federal trademark registration, it is entitled to the presumption that it is the exclusive, nationwide, user of the mark in connection with the goods and/or services listed in its registration. The standard for trademark infringement is “likelihood of confusion,” which means that if ordinary consumers would think that goods or services associated with a later-adopted trademark come from, are approved by, or have something to do with the registrant, the earlier-adopter is entitled to have the later adopter back away from the confusingly similar mark. The standard is not “identicality,” so it does not matter if relatively trivial differences exist between the marks.


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