Your trademark is more than just a catchy logo or brand name — it’s the legal embodiment of your business’s identity, reputation, and goodwill. Whether you’re an early-stage startup or a seasoned brand operating nationwide, your trademark can be one of the most valuable assets your business owns. But with that value comes vulnerability. Understanding how to recognize and respond to trademark infringement and dilution is critical for protecting what you’ve built.
Trademark Infringement: A Threat to Brand Identity
Trademark infringement occurs when a third party uses a mark that is identical or confusingly similar to your own, in connection with goods or services that overlap with or relate to your business. Importantly, the test isn’t whether consumers are actually confused — it’s whether there’s a likelihood that they could be.
Let’s say you’ve been operating a juice bar under the name “Berry Bubbles” in NYC for several years. One day, you discover a new business opening nearby under the name “Berry Bubblz.” Even with the alternate spelling, consumers could easily assume the two are affiliated. That’s a textbook case of trademark infringement.
Under the Lanham Act — the federal statute governing trademark law — you may have grounds to stop that competing use, especially if you’ve secured a federal registration for your mark. But infringement cases hinge on a number of nuanced factors.
What Courts Actually Look At
In infringement claims, courts evaluate whether a likelihood of confusion exists. That analysis typically involves several factors, including:
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The similarity of the marks in appearance, sound, and meaning
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The similarity of the products or services being offered
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The strength of the plaintiff’s mark (i.e., how distinctive or well-known it is)
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The presence (or absence) of actual consumer confusion
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The defendant’s intent (whether they acted in bad faith)
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The marketing channels used by both parties
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The degree of consumer care in purchasing the product or service
No one factor is determinative. Courts weigh the totality of the circumstances to assess whether consumers would reasonably believe the two businesses are connected. Often, a strong trademark paired with overlapping services makes for a compelling infringement claim.
What About Trademark Dilution?
Not all trademark violations involve customer confusion. Some cases concern the unauthorized use of a famous mark in a way that weakens its distinctiveness or tarnishes its reputation. This is known as trademark dilution.
Unlike infringement, dilution applies only to marks that are truly well-known across a broad segment of the public — think “Google,” “Nike,” or “McDonald’s.” If a lesser-known brand attempts to capitalize on the fame of one of these household names — even for entirely unrelated products — the owner of the famous mark may bring a dilution claim.
Dilution comes in two primary forms:
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Blurring — This occurs when the distinctiveness of the famous mark is eroded by being associated with different goods or services. For example, “Kodak Pianos” could blur the strong mental association between “Kodak” and cameras, even if there’s no risk of confusion.
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Tarnishment — This happens when the mark is linked to something offensive, unsavory, or damaging to the brand’s image. For instance, if someone uses the “Disney” name to promote adult-themed products, that use could tarnish the wholesome identity Disney has cultivated.
Dilution claims are powerful tools for famous brands to maintain their uniqueness in the marketplace, even in the absence of direct competition or confusion.
Proactive Protection: Your Best Defense
Whether you’re guarding against infringement or dilution, the key is to be proactive. Registering your trademark with the USPTO is a critical first step. While common law rights do exist, federal registration provides far more robust legal remedies, including nationwide priority, evidentiary presumptions, and the ability to bring suit in federal court.
Beyond registration, trademark owners should routinely monitor the marketplace. That means staying alert to similar names in your industry, watching new trademark filings, and keeping an eye on social media handles and domain names. Trademark watch services — often run by law firms or specialized vendors — can help identify potentially conflicting uses early, before they do lasting harm.
If you discover an infringing or dilutive use, your first step may be to send a cease-and-desist letter. This letter puts the other party on notice and gives them a chance to voluntarily stop using the mark. In many cases, that’s enough. But if the infringer refuses to back down, you may need to pursue litigation or file an opposition with the Trademark Trial and Appeal Board (TTAB), depending on the situation.
Accused of Infringement? Here’s What to Do
On the flip side, if you receive a cease-and-desist letter or are named in a trademark lawsuit, don’t panic. Many cases stem from misunderstandings or overly broad claims. Before taking any action — like changing your brand name — consult a trademark attorney who can assess the strength of the claim and advise you on possible defenses.
There may be valid reasons why your use is lawful. For example, if your use qualifies as fair use, is part of a parody, or occurs in a completely different industry, you might not be infringing at all. In other situations, you might be able to negotiate a coexistence agreement, allowing both parties to continue using their respective marks under certain conditions.
The Internet: A New Frontier for Trademark Conflicts
The digital era has significantly increased the speed — and the stakes — of trademark enforcement. Infringing uses can pop up overnight on e-commerce platforms, social media accounts, and domain names, often reaching thousands of consumers before the trademark owner is even aware.
Online counterfeits, impersonator accounts, and cybersquatting (where bad actors register domain names similar to existing brands) are common threats. Fortunately, platforms like Amazon, Instagram, and the Internet Corporation for Assigned Names and Numbers (ICANN) offer takedown mechanisms and dispute resolution procedures.
Still, trademark owners must act quickly. Failing to enforce your rights consistently — even online — can undermine your brand and weaken your ability to stop future infringers.
Conclusion: Don’t Wait for a Crisis
The bottom line? Your trademark is the face of your brand. If you’re not actively protecting it, you’re leaving one of your most valuable assets exposed.
Whether you’re navigating a potential infringement, facing dilution of a well-known mark, or just launching a new brand, trademark law is a landscape that rewards early action and informed strategy. Register your trademarks. Monitor the market. And if something feels off, don’t ignore it — address it before it becomes a bigger problem.
Need help evaluating your trademark rights or enforcing them? Our team at Cohn Legal, PLLC is here to assist. We offer legal guidance tailored to entrepreneurs, startups, and growing businesses that understand the importance of protecting what makes their brand unique.