Beyond the Hammer: Thoughtful Approaches to Trademark Infringement

By: Donna Ray Berkelhammer. This was posted Thursday, March 15th, 2012

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Obtaining a federal or state trademark is merely the first step in protecting your brand and reputation. If you don’t actively root out and address infringement, you could be abandoning your mark.  Many people equate “policing” a trademark with sending stern cease and desist letters.

A knee-jerk cease and desist letter, however,  can subject the brand owner to scorn, ridicule or can make a  previously little-known criticism site go viral. The most recent case of this in the media is Chick-Fil-A‘s claim that “Eat More Kale” infringes its “Eat mor chikin” slogan. Even the NFL is not immune from claims that it overzealous in protecting its intellectual property rights.

A better and more balanced approach was used by Vibram USA, in trying to stamp out counterfeit “Five Fingers” running shoes, as documented recently in Inc. Magazine. To me, this approach uses common sense, a firm understanding of market niche, and engages its customers.  A customized, thoughtful approach is better than a one-size-fits-all hammer approach.

Cease and desist letters are now posted online and the senders tagged as trademark bullies.  It is more important than ever to coordinate response to potential infringement with your marketing and legal teams.  Here’s a starting checklist of topics to consider before firing off that cease and desist letter:

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