Brand Infringement: What It Is and How to Protect Against It

Trademark law exists to protect intellectual property rights and encourage innovation, competition, and diversity in the marketplace. As a brand owner, these laws are important so you can make your business stand out, maintain your reputation, and build trust with customers. As you learn about protecting your business, brand infringement is one legal area that’s sure to come up.

What is brand infringement?

Brand infringement is when another person or organization uses your brand’s assets without permission. It’s often used the same way as “trademark infringement,” but brand infringement can also include other types of intellectual property violations, like infringing on copyrights and patents.

Trademarks protect your brand’s logo, name, and slogan from unauthorized use. Counterfeiting, or selling fake products that look like yours, and cybersquatting, which is when someone registers or uses a domain name that includes a trademark, are types of trademark infringement.

Copyrights protect original, tangible content, like books, music, art, films, and software. Patents cover new inventions or improvements to existing products or processes, while trade secrets protect your company’s proprietary information. Infringement on your brand’s trademarks, copyrights, patents, or trade secrets are all intellectual property violations.

Brand infringement examples

Trademark and intellectual property rights provide a foundation for you to defend your brand against unauthorized use by others.

Trademark infringement

Trademark infringement happens when someone uses a trademark or service mark, such as a name, logo, or slogan, that is confusingly similar to yours. This kind of brand infringement can mislead consumers into thinking they’re dealing with your company when they’re not. It can damage your reputation and the value of your brand.

For example, Adidas filed a lawsuit against Forever 21 for selling merchandise with a logo that was confusingly similar to its trademarked, three-stripe design. In fact, Adidas is known for aggressively defending its registered mark, and has also sued Tesla and Skechers, among others.

Counterfeiting

Counterfeiting is a form of trademark infringement where someone produces and sells fake versions of your products under your brand’s name. People who make counterfeit goods want to purposefully deceive customers into believing they’re purchasing something authentic.

Counterfeit luxury goods like handbags or watches are an especially common trademark infringement case. In one famous case, a woman named Xu Ting was ordered to pay Chanel $6.9 million and shut down multiple websites she used to sell counterfeit goods including Louis Vuitton and Marc Jacobs. 

Copyright infringement

Copyright infringement involves the unauthorized use of your original content—anything from your website’s text and images to your product designs or software code. For example, if a competitor copies the content of your website word for word or uses your original photos without permission, they’re infringing on your copyright as the brand owner.  

Copyright infringement claims are especially common in the music industry. Perhaps the most well-known case was against Napster, the pioneering file-sharing program that let anyone download music for free. It quickly faced lawsuits from Metallica, A&M Records, and more, ultimately paying more than $25 million in damages and closing down for good.

Patent infringement

Patents give you the exclusive rights to profit from a unique innovation. Patent infringement occurs when another business or person makes, uses, sells, or imports your patented invention or process without your permission. The best brand infringement examples in this category come from industries like tech and pharmaceuticals, where research and development require a huge investment of both time and money.

One large patent infringement case resulted in a $2.5 billion jury verdict. Idenix Pharmaceuticals alleged that the active ingredient in another company’s drug infringed on one of their patents. The court agreed, awarding damages for potential lost sales of the patented drug.

How brand infringement impacts your business

Brand and trademark infringement cause consumer confusion and can negatively impact your business in a few different ways.

Damage to your brand reputation

When another business uses your brand assets without permission, the infringing mark can confuse customers. Imagine you’re the trademark owner of a coffee shop called “BrewMaster,” and another local café starts using the name “BrewMastery.” A customer visits “BrewMastery” believing it’s another location of your coffee shop, but they receive very poor service. Now, they’re less likely to go to either location. Not only does the other shop’s trademark infringement make it hard for you to stand out, but it can also directly damage your reputation.

Loss of revenue

Following the example above, it’s easy to see how trademark infringement can divert customers away from your business and lead to lost sales. Plus, if someone does infringe on your registered mark, bringing an infringement lawsuit can be costly and time-consuming, which also eats into your revenue potential. However, it’s important to remember that defending your brand against trademark infringement is worth it in the long run.

Loss of customer trust

Losing your customers’ trust might be the worst effect of trademark infringement. When customers trust a business, they’re more likely to make repeat purchases, try new products, and choose that business over competitors. But when customers aren’t sure they’re purchasing from the correct brand, trust erodes. Consumer confusion might mean they choose not to buy at all—and that affects your bottom line.

What you can do about brand infringement

Brand, trademark, and IP infringement all dilute the power of your brand. It’s up to you as the trademark owner to learn how to protect your IP and your business.

Register your intellectual property

Registering your intellectual property (IP) is one of the most effective ways to prevent brand infringement. When you register your trademarks, patents, and copyrights, you gain exclusive rights to use and profit from those assets.

You can register a trademark at the state level and federal level. A state-registered trademark only protects your business in that state. Federal trademark registration with the United States Patent and Trademark Office (USPTO) protects your trademark across the entire country, so you can take legal action against infringers no matter where they are based. You’ll also file for patents with the Trademark Office, which protects them at the federal level.

Copyright works differently: It’s secured when you create the work. That means when you write a blog on your website or take a photograph of your product, you automatically have copyright over it. However, you can still register your work with the U.S. Copyright Office to establish a public record. You’ll need this registration to bring a copyright infringement lawsuit.

Monitor your brand

As the trademark owner, it’s up to you to prevent brand infringement. You’ll need to monitor the marketplace to catch unauthorized use of your brand. Start by setting up Google Alerts for your brand name, slogans, and key products so you’ll be notified whenever your brand is mentioned online.

You should also perform a regular trademark search of the USPTO database if you have a federal trademark registration. You can see the trademark status of applications that may be similar to yours so you can get ahead of potential issues. There are various tools available to help you, but it can be easier to use a trademark monitoring service like the one offered by LegalZoom. 

Learn how to identify trademark infringement

To prove that trademark infringement has occurred, your case will need to pass the “Lapp test.” This is a legal standard the courts use to determine if the defendant’s mark causes “actual confusion” with the plaintiff’s mark. It includes things like the similarity to the trademark owner’s mark, the similarity of the products, the strength of your trademark, and the alleged infringer’s intent.

 If you do identify trademark infringement, you should contact an attorney who specializes in trademark law. Trademark infringement cases are complex.

Keep your trademark active

Under trademark law, you must actively use your trademark in order for it to be legally protected. An “active trademark” is one that you continuously use in the marketplace in connection with the goods or services for which it was registered.

 For example, if you trademark a logo for a shoe company, you must actually sell shoes under that logo. If you stop, your trademark could be considered abandoned, which means others can use it.

Use your trademark properly 

Another risk is your registered mark becoming generic, which means it becomes a common term for a product or service. When this happens, you lose your rights to enforce the trademark because it no longer identifies your brand exclusively. Famous examples of brands that lost the right to own trademarks include aspirin, granola, trampoline, cola, and soft soap.

 To help prevent your registered service mark from becoming generic, make sure you use it properly: 

• Add descriptive terms: For example, if your trademark is “EverFresh” for juices, you might use “EverFresh pressed juices” in your marketing to keep the brand associated with the product category and reduce the likelihood of confusion.
• Use the word “brand” after your name: This helps reinforce that the name is a brand, not just a product, and gives an extra layer of brand protection. For instance, “Kleenex Brand Tissues” reminds consumers that “Kleenex” is a brand name, not a generic term for tissues.
• Diversify your products: By expanding your product line under the same brand, you reduce the risk that your brand name will become synonymous with a single product. If “EverFresh” also sells smoothies and teas, it’s less likely to be seen as just a juice brand.
• Stay consistent: Keeping your brand name consistent across all marketing materials helps prevent dilution. For example, don’t switch between singular and plural forms or change the spelling in different contexts.

How to respond to brand infringement

When you identify trademark infringement, there are a few things you can try before you take legal action: 

• The first step is to send a cease and desist letter. This is a formal notice that informs the owner of the allegedly infringing mark that they’re causing confusion with a registered mark. Most business owners want to avoid trademark infringement, so this may be all it takes.  
• You could also consider offering the owner of the infringing mark a license to use your IP in exchange for a fee. This can turn a potential problem into a business opportunity and lets you maintain control over your brand while also generating revenue.

If these strategies don’t work, the next step is to file a trademark infringement claim. Your lawsuit could seek damages, an injunction to stop further infringement, and potentially the destruction of infringing goods.

 An attorney can help you build your trademark infringement case, prove that there is actual confusion, file the paperwork, and navigate the process. They can also help you with other aspects of registration and trademark protection, so you can be confident your business is protected.

FAQs

How do I know if my brand is being infringed?

Regularly monitor the market for trademark infringement issues like unauthorized uses of your brand’s assets. Look for similar names, logos, or products that could confuse customers. Online tools like Google Alerts can help you stay informed about potential trademark infringements.

How do I report brand infringement?

Start by documenting the infringement, including screenshots or product samples. Then, send a cease and desist letter to the infringer. If necessary, report the infringement to e-commerce platforms, and consider legal action if the issue persists.

What are the consequences of brand infringement for the infringer?

Infringers may face legal penalties, including damages and legal fees. Courts can also issue an injunction to stop further infringement and order the destruction of infringing goods. In severe cases, infringers might lose their business licenses or face criminal charges. This is why it’s just as important to learn how to avoid trademark infringement as it is to protect your brand.