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TRADEMARK INFRINGEMENTS Trademark infringement is the illegal use of a trademark or service mark in connection to goods and services in ways that will cause deception, confusion or mistake regarding the source of the goods or services. Once trademark infringement has been detected, the person whose rights have been violated needs to take legal action. Before filing a case, the person who has been infringed should first confirm if there is actually a trademark infringement and determine if the problem really exists. One should make sure they have a clear ground for defending a mark. Before filing a suit, the following factors need to be considered; who has priority to use the mark and if there enough evidence to support a trademark infringement claim. After identifying that there is infringement, the first step is to send a cease-and-desist letter to the rival business. This is a legal document issued by the court to order a party or a business to stop engaging in certain activities. If the apparent infringer does not desist from the infringing acts, the next step is to file a lawsuit in court. Once in court, the court after ruling may offer several remedies. The injunctive relief The injunctive relief is a prohibition ordered by a court of law which has been granted by the court or sometimes requested by parties for an injunction. An injunctive relief from the court in a trademark violation petition can result to several actions. The court could demand that the infringer should stop infringing. The court may also demand the infringer takes preventive measures to ensure that they stop infringing. The court may also demand that the goods or services causing the infringement be destroyed or eliminated. All these demands depend on several issues; the likelihood of the success of the person filing the suit, the presence of severe injury to the plaintiff and the interest of the public. 2 TRADEMARK INFRINGEMENTS Demanding damages Another remedy of trademark infringements is demanding for compensation for the damages caused. The courts have the ability to demand damages from the infringer. However it is necessary to prove facts regarding the damages caused by the infringement before demanding for compensation. The regulations regarding the calculation of damages are included in the Trademark Law Article 38 statute. Due to a trademark infringement, it is likely that the plaintiff to the law suit has had reduced sales or has suffered a bad business reputation. The plaintiff may recover these damages but they are sometimes difficult to prove. There must be proof of actual harm before a court can allow the plaintiff to recover the actual damages. The plaintiff may also get a reward in form of the profits of the alleged infringer. For this to happen the plaintiff only has to present evidence of the infringer’s sales that are connected to the infringement. Restitution of unjust enrichment In a suite involving trademark infringement, the plaintiff may demand the restitution of unjust enrichment. This involves the legal returning of money or profits by people who unjustly got rich at the expense of another person or party. Measures for recovery of reputation After petition from the plaintiff, the court may order the defendant to create remedies that will enable the damaged reputation of the plaintiff to be recovered. Public announcements can be demanded by the court as a way of ensuring that the plaintiff’s reputation is recovered. 3 TRADEMARK INFRINGEMENTS Criminal prosecution According to the trademark law article 78, criminal prosecution may be necessary in a trademark infringement suite. Trademark infringement may attract a jail term not less than five years or very hefty fines. In trademark infringement cases, the defendants may try to bring out arguments that support their conducts and that would allow them to get out of trouble and at the very best continue using the mark. There are several defenses available that can support a defendant in a claim concerning trademark infringement. One of them is the doctrine of laches that states that the other party (the plaintiff) refused to pursue a claim in time thus preventing the defendant from preparing his defense. The goal of the doctrine of laches is to prevent a party from surprising another party by not filing a claim in time. Another defense that can be argued in a trademark infringement suite is the unclean hands doctrine which states that the court cannot give its help to a plaintiff if the defendant argues that the plaintiff has committed unethical acts in relation to the subject of the suit. Another common defense in trademark infringement cases is the fair use or collateral use defense. The fair use defense argues that it is not an infringement when someone uses a trademark for another purpose that is different from the original purpose of the mark. 4 TRADEMARK INFRINGEMENTS REFERENCES Bouchoux, D. (2013). Intellectual property: The law of trademarks, copyrights, patents, and trade secrets. (4th ed.). Cengage. In McDonald, P., In Carman, E., In Hoyt, E., In Drake, P., & British Film Institute,. (2015). Hollywood and the law. In Dinwoodie, G. B. (2013). Methods and perspectives in intellectual property. Bently, L., & Sherman, B. (2014). Intellectual property law. 5
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