A Discussion of Patent Infringement and Trademark Law

Patent infringement and trademark violations are two different arenas. It involves the use, marketing, sale, or profit from and invention that is patented under someone else's name or company. A trademark violator is someone who has attempted to use a company's or individual's trademark for personal or financial gain. A trademark is the company's or individual's "calling card", the logo or point of reference used by that company to create associations.

Coca-Cola is a registered trademark, and thus anyone marketing under the name Coca-Cola would then be a trademark violator. Anyone who rebottled Coca-Cola in a different packaging and sold it as a Coke product is then looking at patent infringement. It occurs when you steal someone else's invention (or create it on your own) and then market it as your own product.

A trademark violator may very well commit the act accidentally, just as easily as it can happen accidentally. With the vast number of trademarks and new inventions it is possible for someone to accidentally become a trademark violator or to accidentally commit patent infringement. In the eyes of the law, however, there is little difference between committing these acts accidentally or intentionally.

If a trademark violator initiates a violation of trademark laws, which can be anything from attempting to register the same trademark picture as another company or using another company's logo as their own, they are subject to significant fines and damage awards to the company they offended.

The standards are held so high against trademark violators as a reflection of the importance of fair free enterprise. There is a great amount of effort that companies and individuals put into producing original concepts and creations and should be financially rewarded for their hard work and their ability to make daily life either better, easier, or more rewarding. On the basis of free enterprise and fairness in the free market, trademark violators are risking the financial health of those who truly deserve it. A trademark violator is equivalent to an intellectual material thief.

It is equally as harmful to companies large and small. Patent infringement robs companies of their right to market their own creative products exclusively and to profit from their ability to be the first to create said product. The law protects the rights of a company or individual to market their invention exclusively if they take the time to go through the process of obtaining a patent. Thus, it is taken rather seriously in the United States.

Whether you are a trademark violator or have committed an act of patent infringement, you can certainly expect to be taken as far as the length of the law will extend. With the power of today's research capabilities, there really is no reasonable excuse for becoming a trademark violator or committing an act of patent infringement. The power of these same research tools makes it easier for companies and individuals to locate trademark violators and acts of patent infringement.

When a company discovers a trademark violator or someone who has committed an act of patent infringement, the first step is to send a cease a desist letter, explaining the violation and how the offended company plans to proceed if the trademark violator or the patent infringement does not immediately stop. Often a copy of the original patent or trademark registration will accompany the letter.

The trademark violator or the perpetrator of it must decide if the evidence before them is enough to consider themselves trademark violators or guilty of patent infringement. Then naturally, they either immediately cease or they choose to fight their battle in court.

Taking a trademark violator or the perpetrator of a patent infringement to court requires some evidence that there was either prior knowledge, or that you presented them with knowledge of it or the trademark violation. The burden of evidence is relatively low, and often the original cease and desist letter and copies of the patent or trademark registration will suffice.

Once the trademark violator or perpetrator of the patent infringement has been served, the burden is mostly on their shoulders to prove that they did not have prior knowledge of either the trademark or the patent which they infringed upon.

Even in accidental cases, the trademark violator or the perpetrator of the patent infringement may very well find themselves with an ample judgment against them. The damage that can be done by a trademark violator or through patent infringement does not have much to do with intent or prior knowledge. Once the damage has been done, it can not be undone.