Trademark Infringement Attorney: What to Do When Someone Is Using Your Mark
If someone is using a trademark that is confusingly similar to yours, you have a legal problem that requires a trademark attorney — not a template, not a demand letter you draft yourself, and not a wait-and-see approach. Trademark rights are use-based, and delay in enforcing them can weaken your position. At Michael Meyer Law, trademark infringement matters begin with a legal assessment of the infringement, followed by a cease and desist letter where appropriate. Active federal litigation is referred to litigation counsel. Flat fee for trademark registration: $850 total. Contact (402) 321-7532 to discuss an infringement matter.
What Is Trademark Infringement?
Trademark infringement occurs when a person or business uses a trademark — a name, logo, slogan, or other brand identifier — in a way that is likely to cause consumer confusion about the source, sponsorship, or affiliation of goods or services. The legal standard is likelihood of confusion, not actual confusion. You do not need to prove that consumers were actually misled — only that confusion is likely given how similar the marks are and how related the goods or services are.
Federal trademark infringement is governed by the Lanham Act (15 U.S.C. § 1114 for registered marks, § 1125 for unregistered marks). A trademark owner whose mark is registered with the USPTO has significantly stronger enforcement rights than an unregistered mark owner — including a legal presumption of ownership, constructive notice to infringers, and access to federal court remedies including statutory damages.
The most important thing to understand about trademark infringement: registration matters. If you do not have a federal trademark registration and someone starts using a similar mark, your ability to stop them is significantly limited compared to what a registered trademark owner can do. This is one of the most compelling reasons to register before a conflict arises, not after.
The Likelihood of Confusion Standard
Not every similar mark is an infringing mark. The legal test for trademark infringement applies the DuPont factors — a multi-factor analysis developed by the Court of Customs and Patent Appeals that courts and the USPTO use to evaluate whether two marks are likely to cause confusion. The most important factors are:
Similarity of the marks — how similar are the marks in appearance, sound, and meaning? Marks do not need to be identical to infringe. A phonetically similar name, a logo with the same dominant element, or a mark with the same commercial impression can all create likelihood of confusion.
Relatedness of the goods or services — how closely related are the products or services sold under each mark? Identical marks on completely unrelated goods may coexist. Similar marks on closely related goods in the same market are much more likely to create confusion.
Strength of the senior mark — famous or inherently distinctive marks get broader protection than weak or descriptive marks. A strong mark like APPLE for technology products is protected against a much wider range of similar uses than a weak, descriptive mark.
Channels of trade and consumer sophistication — are the goods sold through the same channels? Are consumers likely to exercise care in purchasing, or is this an impulse purchase where confusion is more likely?
Evidence of actual confusion — while not required, evidence that consumers have actually been confused is strong proof of infringement. Misdirected emails, social media confusion, and customer complaints can all serve as evidence.
The DuPont analysis is fact-specific — the outcome depends on the particular marks and goods at issue, not on a mechanical checklist. This is precisely why a trademark attorney's assessment matters before you take action.
What a Trademark Infringement Attorney Does
A trademark infringement attorney provides the legal analysis and advocacy that an infringement situation requires. At Michael Meyer Law, the infringement matter engagement covers:
Trademark Infringement Examples
Understanding what trademark infringement looks like in practice helps clarify when you have a real problem versus a situation that requires monitoring but not immediate action.
Name similarity in the same industry
A new competitor opens a business using a name that sounds like yours and sells the same type of products, in the same city, selling services to the same customer base — likelihood of confusion is high. This is a classic infringement scenario.
Logo copying
A competitor uses a logo with the same dominant visual element as your registered design mark — even with different colors or slightly different proportions. If the overall commercial impression is similar and the goods are related, infringement may exist even without identical copying.
Domain name squatting and cybersquatting
Someone registers a domain name that is confusingly similar to your trademark with the bad-faith intent to profit from your brand's goodwill. The Anti-Cybersquatting Consumer Protection Act (ACPA) provides additional remedies beyond standard trademark infringement for this specific conduct.
Reverse confusion
A larger company starts using a mark similar to your established, smaller brand — not to trade on your goodwill, but causing consumers to think you are affiliated with or derived from the larger company. Reverse confusion is less common but can be just as damaging.
Keyword advertising
A competitor bids on your trademark as a keyword in paid search advertising, triggering their ads when consumers search for your brand. Trademark infringement in keyword advertising is a developing area of law with fact-specific outcomes.
If You Received a Cease and Desist Letter
Receiving a cease and desist letter alleging trademark infringement is stressful — but a letter is not a lawsuit, and the right response depends entirely on the specific facts of your situation. Do not ignore it. Do not respond without legal counsel.
Evaluate the claim honestly. A cease and desist letter may be well-founded, overstated, or outright meritless. Before you respond, a trademark attorney should analyze the DuPont factors to assess how strong the claimant's position actually is. Many cease and desist letters are sent on weak factual grounds — particularly when the marks are in different industries or the claimant's mark is weak and diluted by many similar uses.
Understand your options. Depending on the strength of the claim and your business needs, your options may include: modify your mark to increase distinctiveness and distance from the claimant's mark, negotiate a coexistence agreement, contest the claim with a legal response, or — if the claim appears strong — discontinue use and avoid further liability exposure.
Do not assume you must comply. A cease and desist letter is a demand, not a court order. However, ignoring it or responding dismissively can escalate the matter unnecessarily and weaken your position if the dispute reaches litigation.
Trademark Infringement Damages
If a trademark infringement matter proceeds to federal litigation, the available remedies under the Lanham Act include:
Injunctive relief — a court order requiring the infringer to stop using the infringing mark. This is often the primary remedy sought and can be obtained on a preliminary basis before trial if the trademark owner demonstrates likely success on the merits and irreparable harm.
Defendant's profits — the infringer's profits attributable to the infringing use. This is designed to prevent unjust enrichment from the infringement.
Actual damages — the trademark owner's lost sales or other economic harm caused by the infringement.
Enhanced damages — in cases of willful infringement, courts may award up to three times actual damages. A properly documented cease and desist letter and response record is directly relevant to establishing willfulness.
Attorney fees — in exceptional cases — typically involving willful, deliberate infringement — the court may award attorney fees to the prevailing party.
Statutory damages for counterfeit marks — for cases involving counterfeit marks (not just confusingly similar marks, but deliberate copies of registered marks), statutory damages of $1,000 to $200,000 per counterfeit mark per type of goods are available, up to $2,000,000 for willful counterfeiting.
Why a Federal Trademark Registration Changes Everything
The difference between enforcing a registered trademark and enforcing an unregistered (common law) trademark is substantial:
Registered trademark owner
Nationwide priority from the filing date, a legal presumption of validity and ownership, constructive notice to all subsequent users, the right to use the ® symbol, access to U.S. Customs recordation to block counterfeit imports, and access to statutory damages for counterfeiting. In a federal infringement lawsuit, the registered owner starts with presumptions that work in their favor.
Unregistered common law trademark owner
Rights only in the geographic areas where the mark is actually used, no legal presumption of ownership, and must prove both ownership and validity in any infringement action. Enforcing common law trademark rights is significantly more expensive and uncertain.
If you do not have a federal trademark registration and are facing infringement, the most urgent priority alongside addressing the immediate infringement situation is filing for federal registration. Registration during an infringement situation creates a public record of your claim and begins building the nationwide rights that make future enforcement more straightforward.
Frequently Asked Questions
What is a trademark infringement attorney?
A trademark infringement attorney is a licensed trademark attorney who evaluates infringement claims, advises on enforcement options, drafts and responds to cease and desist letters, handles USPTO opposition and cancellation proceedings, and refers matters requiring federal litigation to litigation specialists. At Michael Meyer Law, trademark infringement matters are handled by Michael Meyer directly — USPTO-registered patent and trademark attorney (Reg. No. 78,575) with over 200 trademark matters before the USPTO.
How do I know if my trademark is being infringed?
Trademark infringement requires likelihood of confusion — that consumers are likely to be confused about the source, sponsorship, or affiliation of goods or services because of a similar mark. If you have discovered a competitor using a similar name, logo, or slogan in the same or related industry, a trademark attorney can assess whether infringement exists by applying the DuPont likelihood of confusion factors to the specific facts.
What does a trademark infringement attorney cost?
Attorney fees for trademark infringement matters vary significantly depending on the scope of work. A preliminary infringement assessment and cease and desist letter typically runs $500–$1,500 in attorney fees. Response to a received cease and desist is similarly priced depending on complexity. TTAB opposition and cancellation proceedings involve ongoing fees. Federal litigation is handled by litigation specialists and priced separately.
Should I send a cease and desist letter myself?
A cease and desist letter drafted and sent by a trademark attorney carries more legal weight than a business owner's letter, accurately states the legal basis for the claim, and avoids common mistakes that can weaken your position. More importantly, a trademark attorney can tell you whether your claim is strong enough to warrant a cease and desist before you send it — sending a letter on a weak claim can invite a declaratory judgment action.
What if I can't afford to litigate?
Federal trademark litigation is expensive and is not the only enforcement option. A well-drafted cease and desist letter resolves many infringement situations without litigation. TTAB proceedings are significantly less expensive than district court litigation. A trademark attorney can assess which enforcement tool is most appropriate for your situation and budget.
Does the other party have to be making money for it to be infringement?
No. Commercial use in commerce is required for trademark infringement, but the infringer does not need to be profitable. A business using a confusingly similar mark that has not yet generated revenue can still infringe your trademark if the use is commercial.
Ready to Discuss a Trademark Infringement Matter?
Michael Meyer is a USPTO-registered trademark attorney (Reg. No. 78,575) who handles trademark infringement assessments, cease and desist letters, and TTAB opposition and cancellation proceedings for trademark owners and businesses nationwide. Federal litigation is referred to litigation specialists.
This article is for informational purposes only and does not constitute legal advice. Trademark law involves fact-specific analysis — contact a licensed attorney to discuss your specific situation.
Written by Michael Meyer, USPTO-Registered Patent & Trademark Attorney, Reg. No. 78,575. Michael has been involved in over 400 patent matters and 200 trademark matters before the USPTO. View credentials and verify license.