TRADEMARK VIOLATION DEFENSE
Q1. What is a trademark?
A1. Trademarks, copyrights, and patents protect different types of intellectual property. A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention. For example, the company and product name Coca-Cola are protected marks. The distinctive design of the imagery appearing on a can of Coca-Cola is also a protected mark.
Q2. What is trademark violation?
A2. Trademark violation is the unauthorized use of a trademark or service mark (or a substantially similar mark) on competing or related goods and services.
Q3. If my website did not use the name of the company or product that I am alleged to have violated the trademark of, can I still be held liable?
A3. Yes. Trademarks include symbols and distinctive design patterns owned by or common to the trademark owner’s products.
Q4. If I did not intend to violate the trademark owner’s mark, can I still be held liable?
A4. Yes, though damages may be less than if you intentionally violated the owner’s mark.
Q5. Why was my website, Paypal or other online account seized?
A5. The plaintiff in the case against you has alleged that you intentionally violated their trademark. The judge presiding over the case has issued an order transferring the domain name to the plaintiff’s attorney or another party and/or freezing your PayPal and/or other accounts.
Q6. Why did no one contact me before my website and/or accounts were seized? Is notice not required?
A6. Notice prior to seizure of assets is the general method of operation in U.S. courts. However, an exception is made in some trademark violation cases.
There is a very large problem with international counterfeiting of U.S. brands. Actual counterfeiters often simply move their operations to other domains and open new payment accounts when notified of a pending action. The trademark owner then has no remedy against the counterfeiter.
Q7. How much might I have to pay?
A7. The U.S. statute governing trademarks has two different methods of calculating damages. First, the plaintiff may collect actual damages which may be trebled where the violation is found to be willful. Second, the plaintiff may instead elect to receive statutory damages. This means that if a trademark violation is proven, the judge may determine the amount of damages without a showing of actual damages. This is because the damage caused by a trademark violation is difficult to prove. The maximum amount of statutory damages is $2,000,000 per violated mark.
Q8. Can I be held liable if there was only one or a few images on my website allegedly violated a trademark?
Q9. What if I or my company never had possession of the goods but had them drop shipped from a wholesaler or other merchant?
A9. Under U.S. law, you can still be held liable for offering the infringing item for sale.
Q10. What if I or my company never sold or shipped any of the alleged infringing items?
A10. Under U.S. law, you can still be held liable for offering the infringing item for sale.
Q11. What defenses might I have against a claim of trademark violation?
A11. You may be able to argue that you did not in fact violate the Plaintiff’s trademark. In cases where the marks do not appear to be so similar that a violation is apparent, you may submit a denial. This is a question of fact for the judge or in some cases a jury to determine. An attorney may discover procedural defects in the way the case has been filed or conducted. In cases where a violation is apparent or will likely be found, facts may be submitted which tend to mitigate the Plaintiff’s damages so that you may be required to pay a smaller and in some cases a much smaller sum than what is demanded.
Q12. I received an email from the Plaintiff’s lawyer. Should I contact them and try to negotiate?
A12. No. The sole mission of the Plaintiff’s lawyer is to obtain the largest possible amount of money for his or her client. Delays caused by unrepresented contact with the Plaintiff’s counsel may damage your ability to defend your case.
回答12. 不。 原告律师的唯一目标是帮助他或者她的客户获取尽可能多的金额。和原告律师接触造成的延误可能会损害辩护你案件的能力。
Q13. What must I do to defend my case?
A13. You must file an Answer to the Plaintiff’s Complaint within twenty-one days of the date that you were given notice of the lawsuit. If your domain has been seized, the time period in which you must file this Answer is on the notice that covers your domain name. This date may also be included in an email that you received from the Plaintiff’s counsel.
Q14. What happens if I do nothing?
A14. If you do not file an Answer, the Plaintiff will ask the Court to enter a default judgment against you. The Plaintiff will retain control over your domain(s), Paypal accounts and other seized assets. It may be difficult or impossible to obtain a new Paypal account. Default judgements usually issue in the amount requested by the Plaintiff: $2,000,000 per mark. Interest will begin to accrue on the judgement from the date of issuance.
Q15. There is little money in my Paypal account and I can get another domain or cease doing business online. What happens if I do nothing and a default judgement is entered against me?
A15. A federal court judgment gives the Plaintiff the power to collect the money from you in a variety of ways. The Plaintiff may seize any bank accounts, real estate, securities or other assets that you or a business that is under your control have inside the United States in order to satisfy the debt and interest on the debt. In some cases, a judgement may be enforced against persons and assets outside the United States. A judgement will appear on your U.S. credit record. The Plaintiff’s ability to seize assets extends to those assets that are acquired after entry of the judgement. This includes domains and online merchant accounts. The ability to conduct business in or with persons inside the U.S. without worry will be eliminated. In some cases, the existence of a civil judgement against you may have a negative effect on pending or future immigration applications.
TRADEMARK VIOLATION LEGAL REPRESENTATION
Q16. What can an American lawyer do to help me?
A16. As an American lawyer, I and attorneys associated with my firm will work to protect your legal rights. We will examine your case, determine your legal rights and possible defenses, and do our best to ensure that your rights are protected. We strive to put you in the best position possible.
Q17. Will your firm file the Answer for me?
A17. Yes, if you hire our firm, we will timely file the Answer when necessary.
Q18. Is it possible to negotiate a settlement with the trademark holder?
A18. Yes. We will immediately contact the Plaintiff’s counsel to determine if settlement is an option.
Q19. How much is your fee?
A19. Fees vary based on the difficulty of the case; the extent of the trademark violation, if any; the amount of money in the Paypal or other merchant account as well as other factors. Some cases may be accepted without an initial cash payment with our fee set as a percentage of the amount that is recovered from the seized accounts. The facts of some cases requires an initial cash payment.
Q20. How do I retain The Law Office of L. Ford Banister, II to represent me in my trademark violation/ Intellectual Property Infringement case?
问题20. 我如何聘用L. Ford Banister律师事务所来代理我的商标侵权/知识产权侵权案件？
A20. Contact The Law Office of L. Ford Banister, II via the Contact Us form on our website for Intellectual Property Infringement case. A representative of our office will contact you as soon as possible.
回答20. 通过网站上的联系表格和L. Ford Banister律师事务所联系进行商标/知识产权侵权辩护。我们律师事务所的人会尽快和你取得联系。
U.S. Trademark Violation Defense