Trademark & Copyright Infringement

Trademark infringement is the unauthorized use of a service mark or trademark in connection with services and/or goods in such a way that is likely to cause confusion regarding the source of the services and/or goods. If you are being sued for trademark infringement or if your trademark has been infringed upon, an intellectual property lawyer from Lieser Skaff can evaluate your situation and help you determine the most strategic way to proceed.

Our Florida trademark attorneys have many decades of combined experience in legal practice. We have assisted clients ranging from private individuals to Fortune 500 companies.

To win a trademark infringement lawsuit, the plaintiff must demonstrate that:

• It is the owner of a trademark or service mark;
• Its rights to the trademark are senior to the defendant’s rights; and
• The defendant’s mark would likely cause confusion, deception, or mistake regarding the source of the services and/or goods offered under each party’s mark.

If the plaintiff’s trademark has been registered on the Principal Register, there is a presumption that the trademark is valid, the plaintiff owns the trademark, and the plaintiff has the exclusive right to use the mark in connection with any services and/or goods listed in the registration.

The court will evaluate several factors when determining whether trademark infringement has occurred. These factors include:

• How similar the two marks are to each other;
• Whether the goods or services of each party are related to the extent that a consumer is likely to assume that the defendant’s goods or services came from the plaintiff;
• Where and how each party advertises its services or goods;
• Whether there is evidence that the defendant’s mark has caused actual confusion;
• What the defendant’s intentions were in using the mark; and
• The strength of the mark that was allegedly infringed upon.

The specific factors that the court will consider when determining the likelihood that consumers would confuse the trademarks can vary from case to case. Besides making a claim for likelihood of confusion, the plaintiff may claim that the defendant’s mark diminishes the value or strength of the plaintiff’s mark by tarnishing the mark’s image or blurring its distinctiveness by associating the mark with something objectionable. This is called a “trademark dilution claim,” and it may be valid even if there the marks are not likely to be confused.

If the court rules in the plaintiff’s favor, the following remedies may be available:

• Monetary relief including damages that the plaintiff sustained, the plaintiff’s legal expenses, and the defendant’s profits;
• A court order that the defendant must forfeit or destroy infringing articles; and
• A court order that use of the mark by the defendant must stop.

If you need help registering a trademark, filing a trademark infringement lawsuit, or defending against accusations of trademark infringement, contact Lieser Skaff to discuss your case. Call (813) 616-2677 or message us online to arrange a consultation with an intellectual property lawyer in Florida.

If the court rules in the plaintiff’s favor, the following remedies may be available:

• Monetary relief including damages that the plaintiff sustained, the plaintiff’s legal expenses, and the defendant’s profits;
• A court order that the defendant must forfeit or destroy infringing articles; and
• A court order that use of the mark by the defendant must stop.

Copyright infringement is the unauthorized use, reproduction, distribution, performance, or public display of an original work protected by copyrights, or the use of an original work to make a derivative work. This can include things like books, paintings, plays, movies, sculptures, tattoos, and other creative endeavors. If you are in a copyright dispute, the intellectual property attorneys at Lieser Skaff can evaluate your situation and either help you enforce your copyright or defend you from an accusation of infringement.

Factors That Determine the Outcome of a Copyright Infringement Lawsuit

There are two types of copyrights, registered and unregistered. While both offer some protections, a registered copyright is the stronger of the two.

A successful copyright infringement lawsuit requires the plaintiff to prove:

• Ownership of a valid copyright, and
• Actionable copying by the defendant of elements of the work that are original

To show ownership of the copyright, a plaintiff must demonstrate the work was:

• Original and independently created by the plaintiff;
• That its creation required a minimal degree of creativity and the subject matter is copyrightable;
• That the statutory requirements of copyright laws were followed; and
• That the copying constitutes an improper appropriation of the work.

To prove actionable copying, the plaintiff must demonstrate that the defendant actually did copy the work (factual copying) or that the defendant’s work is similar enough to the plaintiff’s as to establish that it was appropriated.

The court will evaluate several facts when determining if copyright infringement occurred. These factors include factors such as:

• Whether the two works are in fact identical.
• Whether the defendant had access to the work.
• If there are probative similarities between the two works.

When determining if the works are substantially similar to each other, the test is whether an ordinary observer would regard them as the same.

Remedies Available in Copyright infringement Cases

Several remedies are available to the plaintiff when the court rules in his or her favor, including:

• Injunctive relief that requires the defendant stop the sale, use and/or display of the works;
• Seizure and impoundment of the infringing articles;
• Monetary relief including lost profits or, in lieu thereof, statutory damages if registration was timely obtained. This can also include the plaintiff’s legal expenses, and the defendant’s profits.