Recently, one of our clients was sued for trademark infringement. It sets off a hurried response of gathering facts, generating a timeline, and review of the legal theories involved (for the plaintiff and for the defendant).
How do I avoid being sued for trademark infringement?
This is one of the hardest questions to answer. The best advice is to always do your due diligence as someone who is in business. Due diligence includes having trademark searches performed, being informed of potential plaintiffs, and trying to find the most unique trademarks (be they words, designs, colors or sounds).
There is no set of instructions that will allow a business to avoid complete liability – but doing the due diligence will allow your business to better understand the state of other trademarks and potential plaintiffs that are found.
What steps are involved in a trademark infringement lawsuit?
The plaintiff, believing its trademark is infringed, files a complaint. The complaint lays out the reasons for the lawsuit. It tells the story of the lawsuit. It lists the facts, and then lists the legal theories behind the lawsuit. Do not mistake complaints for simple documents. The complaint about the lawsuit that spurred this post has 60 paragraphs.
The next step: does the defendant answer the complaint or does the defendant file a motion to dismiss the lawsuit. A motion to dismiss the suit can be a 30-page paper explaining the reasons why the lawsuit is dead upon arrival. So, there is much to think about. Answering the complaint requires going through the complaint in a painstaking detail, so that every word is understood. Admitting or denying properly is required in order to set up the case properly. And then the defenses must be explained. The path to take is different in every lawsuit.
Trademark Infringement
What’s next?
Again, every suit is difference, but at some point, discovery will open. Discovery is the process in which both sides ask each other for certain types of evidence to show how that side will prove its case. There may be motions made during discovery to ask the court to compel discovery, throw out certain evidence, or even give a judgment on the case.
Lawsuits are a lot of work.
The discussion is that lawsuits are a lot of work. We want to try to avoid this process for all clients, however.
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