Discovering that someone is using your well-earned brand—your trademark—without consent can be an infuriating and even harmful experience. Trademark infringement can lessen the value of your hard-won brand, befuddle customers, and bleed your business of profits. Wronged trademark owners have remedies; many of them do so. The correct steps can protect your business and enforce your rights.

This guide will lead your business step by step through the fundamental actions to follow when confronted with trademark infringement. From discovering the infringement to possibly taking legal action, this guide outlines the essential course of action.

Step 1: Confirm the Infringement and Gather Evidence

Before you undertake any other activity, perform a detailed examination of the suspected infringement.

• Is it truly infringement? Not every comparable use is infringement. Think about whether the other party is using a mark that could potentially be “confusingly similar”, which is the legal standard for trademark infringement. In other words, will consumers be confused with the other mark in connection with related goods and services that are related enough to yours that people are likely to think the other party is you.
• Collect proof: Keep a record of everything. Capture images of web pages, social media updates, product claims, or advertisements. Pull together any tangible evidence you can find, such as the items themselves, their packaging, or promo materials. Be sure to also record the when and where of all these activities, which will give you a much stronger hand if you ever have to play it.

Step 2: Assess the Impact and Infringer’s Intent

After you’ve verified the infringement, assess how serious it is and consider the possible effects it could have on your company.

• To what extent are people’s rights being breached? Is it occurring on a small, individual scale, or is it a large, ongoing operation affecting many people?
• How serious is the infringement? Does it involve a minor, inconsequential breach of rights, or is it a major, serious operation with significant, harmful consequences for many people?
• What could the harm to your brand and sales possibly be?
• Evaluate the infringer’s intent: Was it an honest misstep, or a purposeful move to profit from your brand? This can affect how you choose to react.

Step 3: Consult with a Trademark Attorney

Before taking any steps, consult a trademark attorney. Take my advice as a friendly suggestion—this is truly a space where expert guidance is very much worth the investment. At times, trademark rights can be a bit nebulous, and your safest bet is to fully understand your rights before someone else uses your mark in a way that could confuse consumers. If it comes to it, you and your attorney can figure out the safest way to draft a cease-and-desist letter. This is sometimes necessary to have written and sent.

Step 4: Send a Cease and Desist Letter

Frequently, the initial and most potent step in enforcing trademark rights is to send a cease and desist letter. This is a legal document that formally notifies the infringer of the trademark owner’s rights and demands that the infringer stop the infringing activities.

• What to include: The letter should identify your trademark, by registration numbers if you have them, clearly and unmistakably, and state how the other party is infringing it. You want the letter to demand that they quit infringing and make it clear what will happen if they keep doing it. (You might also want to reserve the right to sue, just in case.)
• Why it’s effective: Sometimes infringers don’t know they’re infringing, so they might just stop infringing to avoid being sued. A cease and desist letter that’s well-drafted can often clear up the problem without the need of litigation.
• Retain an IP specialist: Even though you can write a cease and desist letter yourself, it carries a lot more authority when an attorney experienced in intellectual property law writes it. Further, sending a demand letter isn’t without its dangers; it might provoke the other side into filing a preemptive action for declaratory relief. Work with a lawyer to determine what you’re comfortable with and how much risk you’re willing to take.

Step 5: Explore Alternative Dispute Resolution (ADR)

If the desired results are not achieved by the cease and desist letter, you might think of litigation alternatives like mediation or arbitration. If these methods do not provide an acceptable solution, proceed to litigation.

• Mediation: You and the infringer have discussions facilitated by a neutral third party who helps you both reach a solution that is mutually agreeable.
• Arbitration: A neutral third party listens to both sides of the argument and makes a binding decision.

Alternative Dispute Resolution can be less expensive and quicker than going through the court system and can often lead to solutions that are more unique and tailored to the parties’ needs.

Step 6: Consider Formal Legal Action

When everything else doesn’t work, and the violation is really hurting your company, you might have to sue for trademark infringement. This is a complex legal and business matter that requires a trademark attorney for a successful outcome.

• Possible solutions: In a victorious trademark infringement suit, a court can issue an injunction (telling the offender to cease and desist), grant monetary compensation (including profits lost as a result of the infringement or statutory damages), and could even direct that infringing items be destroyed.

Proactive Brand Protection is Key

Trademark infringement is best handled by not letting it happen in the first place. This requires proactive strategies—a way of not just waiting for something to happen before taking action.

• Trademark Registration: The strongest way to protect your trademark is to federally register it with the United States Patent and Trademark Office (USPTO). Doing so gives you national notice, even to those who might infringe, that you own the mark. It also gives you some significant legal advantages if you ever have to sue someone for infringing your mark.
• Pay attention to your brand: Look consistently for any unauthorized use of your trademark, both online and offline. This also means keeping an eye on some not-so-obvious places where your brand might be used without permission. For example, search social media for any mention of your brand or products. E-commerce platforms are another place to monitor; check to see if sellers are using your brand name in a way that might confuse customers. Competitors are another obvious source of concern. What are they up to? Is your brand part of their strategy?
• Train your group: Make certain your workers grasp the significance of your trademarks and comprehend how to use them correctly.

Don’t Let Infringement Undermine Your Business

Can a trademark be infringed upon? Yes. And if it can be, competitors out there will try to do it—and try to get away with it. (Common methods include counterfeiting and using confusingly similar brands). Remember, prompt action and competent legal counsel are your greatest allies in protecting your intellectual property.