with Ed Timberlake

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Stopping infringement

Ed Timberlake

Trademark Enthusiast, Attorney, Teacher

Lessons Learned

Not all infringing activity that bothers you will be legally actionable.

A quick conversation with an attorney to assess the activity will save you cash and worry.

Oftentimes, you can settle infringement by sending the other party a polite email or letter.


Lesson: Trademarks with Ed Timberlake

Step #8 Infringement: Stopping infringement

The question of what to do if you see somebody who you think might be infringing your trademark is sometimes a little bit more complicated. Not that you always have to involve a lawyer, but it can be helpful to get a little short cheap discreet about of advice, just some other eyeballs to look at the situation and say, "Does that look like what the law is going to consider infringement or not?" Because one thing that's interesting about the area of where you're talking about rights like copyrights.

If you have a copyright in something or if you have a registered trademark, when you're talking about those kinds of rights it's not uncommon for somebody else to be doing something that feels like you want them to stop doing that. And it will feel like you want them to stop doing that long before the law will recognize, "Okay, that's something they absolutely can't, that's some place they can't go." So I think sometimes getting some other eyes to look at the situation to say, "Well, yes, that's offensive but that's just really what the law is going to look at that and say that's competition." You may feel affronted by what they were doing, but sometimes affront won't be the kind of thing that the law is going to step in and stop them from doing.

But I think again as early as you know it's probably good to talk to a lawyer for an opinion. I don't think it's always the right answer to lawyer up and immediately shut down the conversation or kind of be aggressive about the whole things. That's not always a helpful approach and not always an appropriate approach for a small business particularly because typical when two small businesses lawyer up, neither of them end up in a better place financially because lawyers cost a bunch of money to do that kind of thing. To start suing or threatening to sue each other cost a lot of money. So I think a little bit of advice about, is this the kind of thing that the law typically would step in and take care of can be very helpful.

Often times depending on your field and depending on the situation, it might just be the case where if you've looked at it, maybe somebody else has assessed it, often times you can just contact the other people. The world is smaller than it used to be and it's easier to just sometimes reach out and say, "We're doing this thing. We've been doing this thing for five years in this space. And we just found out about you, you just started doing it last week." In that case sometimes the other person will say, "Man, we just didn't know about you." So you can either work something out or they'll just change their name, but I don't know that there's anything lost by trying to address some of it without necessarily saying, "We're going to sue you and you must shut down and you must destroy all your stuff."

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