MasiboLaw

Why do you buy the perfume brand that you use? Why do you drink only a particular type of whiskey or soda brand? If you are to be honest, there is something about that brand that you like and which makes you choose it as opposed to the others in the market.

For example, you may drink a Coca-Cola because of the refreshing taste it gives you or take a Johnnie Walker Double Black because of its refined texture and sophisticated taste. The reasons are wide and varied but what we can agree on is that you would be very annoyed if tomorrow you bought a bottle of your favourite drink and realized that it was another drink packaged as the one you like – in simple terms, you would hate to drink a counterfeit.

A counterfeit is a product or service that has been made to imitate or look like another product to deceive a consumer or buyer. In as much as counterfeits annoy you as a consumer they hurt the companies that are behind the products you love even more. This is because a counterfeit reduces the sales of the original company as well as erodes the consumer trust and loyalty in the brand especially if the counterfeit is of a significantly lower quality. In legal terms, the counterfeit amounts to something called Trademark Infringement, where the original company had registered a trademark in its original product.

But let’s back up a bit…what is a Trademark?

A trademark is a form of legal protection that a company has over its distinguishable brands as expressed in its products or services. In the dynamic world of business, a company’s brand is one of its most important assets because a majority of consumers purchase products and services based on their trust in the brand of that company.

What this means is that when a third party, who is not the owner, uses a mark (brand differentiator) that is identical to or strikingly similar to your company’s registered trademark, without your consent it is considered trademark infringement. For example, if someone today started making fruit juices and started packaging them as Coca-Cola drinks in Coca-Cola Bottles without the consent of Coca-Cola they are infringing on Coca-Cola’s Trademark.

The infringement may occur through the use of the trademark on promotional material, offering goods and services under the trademark. For example, when Pepsi introduced a drink called Pepsi Cola, Coca-Cola sued Pepsi for Trademark Infringement. An infringement means that the violator will have an unfair business advantage over your business by stirring confusion in the market amongst your loyal customers. This jeopardizes the loyalty and trust of your customers as well as the integrity of your brand.

What do you do when someone infringes on your Trademark?

What should you do if you discover that someone is using your trademark without permission?

1. You can send a cease and desist letter or a demand letter, demanding that the infringing party stop using your name, logo, symbol, or any letter attached to your business. Depending on the extent of the breach, you can also ask them to compensate you for the infringement.
2. If they ignore your cease and desist letter, you have the option to file a lawsuit in a court of law to stop the infringement of your trademark. If you can demonstrate that the infringing party profited from your trademark and that the infringement caused financial hardship for your business, the court will order that they compensate you. A good trademark lawyer can also help you file under a certificate of urgency to get an injunction that immediately stops the third party from infringing on your trademark.

In conclusion, a trademark, especially a registered trademark, is a valuable asset to a business and for that reason, a business must keep a close eye on its mark to ensure that it is not being used by other parties. In the case that you discover that someone has infringed on your trademark, it is important to take swift action to stop the infringement and recover any losses you may have incurred as a result of the infringement.

The writer is a lawyer who specializes in offering legal services to technology companies and people in technology, you can contact him through info@masibolaw.co.ke