Trademarks, like other intellectual property, are very valuable. Today, much of a business’ value is tied up in intellectual property as opposed to goods or other physical assets.

When someone uses your trademark without permission, they are illegally trying to gain the benefit of being associated with your company.

Illegal use of a trademark is called “infringement” and you can sue to protect your rights. If you win, you can receive compensation from the infringing party, and you can block them from using your trademark in the future.

Businesses have rights in trademarks whether they are registered or unregistered. (Though you should certainly register trademarks for added protection.) But if someone is infringing, you should contact a Florida intellectual property lawyer to protect yourself.

What are Statutes of Limitations Anyway?

You will find statutes of limitations throughout the law. Basically, they set out how much time a person or business has to sue if their rights have been violated.

Courts have an interest in deciding cases with fresh evidence, and they don’t want injured parties taking forever and sitting around instead of bringing a lawsuit. Statutes of limitations operate to make sure that injured parties file lawsuits promptly.

If you wait too long to sue, then a judge will throw your case out of court. This means no lawsuit, no compensation, and potentially more infringement of your trademark.

What is the Trademark Infringement Statute of Limitations?

Most trademark cases are brought under federal law, specifically the Lanham Act. Suing under the federal law allows a business to get into federal court, which has some definite advantages. You can also tack on state law claims if you want.

Most interestingly, the Lanham Act does not have a statute of limitations written into it. This means that judges must determine an appropriate amount of time to give injured parties to sue.

They do this by applying a concept called “laches.” This is an equitable concept that will prevent a lawsuit where it would be unfair to require a defendant to mount a defense given the amount of time that has passed.

For example, it is completely unfair to let a business create a product, market it extensively, and build a business around the product only to have a competitor come in and file a lawsuit which could destroy the business.

When deciding whether to apply laches, federal courts look to similar state law claims and check their statute of limitations.

For example, one district court has looked at state unfair competition claims as an analogue to trademark infringement. A Florida unfair competition claim has a four-year statute of limitations, so a court will expect an injured party to file a lawsuit within that window of time.

Under the law, the clock will start running once you have a valid claim for infringement. This means that there is a likelihood of confusion in the marketplace caused by the similar trademark—which might be later than when you first discover the mark.

How to Build a Case for Trademark Infringement

As soon as you notice infringement, you should document the unauthorized use of your trademark and contact a Florida intellectual property attorney. For example, if you see a trademark very similar to yours used on a product, then buy the product and keep the receipt to show the date you purchased it.

If you see a trademark on a website, then print off the website and note the date. Your attorney will want to see the extent of the use, which can help in an investigation.

You also should move quickly. Technically, as explained above, the statute of limitations period does not start until your claim for infringement has ripened because consumers might be confused by your competitor’s mark.

This means that if your competitor has no market presence, then there probably is no confusion yet.

However, you need an attorney’s advice about when is the correct time to sue. One of the worst mistakes you can make is to delay taking legal action because you don’t think your company is being injured. It is better to be safe than sorry.

Contact a Florida Intellectual Property Attorney Now

You have worked hard to increase the value of your brand, and your trademarks are a key part. If you learn that another business is using a similar mark as yours, you might need to sue to stop its use.

Contact BrewerLong today. Our Florida business lawyers have decades of combined experience in this area of law, and we are anxious to help you protect your business. You can reach us today for a free introductory phone call by dialing 407-660-2964.

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Trevor Brewer

Primarily working with business owners and their families, Trevor advises clients on business structuring and sale transactions, regulatory compliance, third-party contracts, liability protection and general matters facing small business owners. His focus extends beyond legal advice and includes business strategy and wealth preservation. Trevor also works with families regarding their estate planning needs, including probate, trust administration, and wills.

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