Unfair competition can be defined as the practice of dishonest or fraudulent rivalry in the business arena. In most cases, unfair competition specifically refers to attempts to pass off one’s products as those of another. This is usually done by imitating or counterfeiting defining characteristics of the other product. One important form of unfair competition is trademark infringement. This is because trademark laws are a subcategory of laws related to unfair competition; thus, the act of trademark infringement is classified as unfair competition.

Trademark Infringement Defined

Trademark infringement refers to the copying of characteristics of similar brands through the use of certain phrases, symbols, words, or images. Such an act is in violation of trademark laws because of the protections offered by a trademark. Regulatory requirements which are related to trademark registration prevent other entities from using trademarks which are too similar to any existing ones. Such requirements are necessary because they prevent the customer from being able to differentiate between brands. Any customer who has been deceived in this way has experienced the negative effects of trademark infringement.

Trademark Infringement and Unfair Competition

Trademark infringement is but one aspect of unfair competition. Other forms of unfair competition include patent infringement, stealing of trade secrets, false statements, price gouging, and antitrust violations. With respect to trademarks, unfair competition laws protect any trademark or item serving to distinguish a business against any possible imitators who seek to unethically profit from customers through the illegal use of this trademark. This is a form of unfair competition because those committing the act of infringement attempt to make a business profit through unethical means.

How Trademark Infringement Can Be Determined

In order for a court to determine that an act of trademark infringement has taken place, the owner of the trademark must prove that the trademark in question is valid, registered, and protected by law. In addition, the owner must also prove that the alleged infringer’s use of the trademark causes confusion over the origin of the products or services involved, thus constituting an act of unfair competition.

To determine whether trademark infringement and thus unfair competition have taken place, courts usually consider several factors. These include the strength of the owner’s trademark, the visual and auditory similarities of the trademarks, the alleged infringer’s intent in selecting the trademark, and any similarities in advertising and marketing methods used.

Steps to Be Taken After Suspected Trademark Infringement

Those who believe that they have experienced trademark infringement should first send a cease and desist letter to the suspected infringer. Should this letter fail to have any effect, a lawsuit can be filed. A trademark infringement lawsuit is intended to permanently deny the infringer or anyone else the ability to use the trademark in question. The infringer will also have to pay damages if the infringement of the trademark caused any financial loss for the business which suffered from it. Like all other forms of unfair competition, trademark infringement does not only give the infringer ill-gotten profits; it also often causes the victim to suffer significant financial loss.

Now that you understand more about how trademark infringement is linked to unfair competition, you should do what you can to protect your trademark against infringement. Choose a strong and well-defined name and image, use it frequently for business purposes, and enforce your trademark rights whenever necessary. By doing so, you can be sure that you will not experience the hardships brought about when someone else infringes upon your trademark rights.

This article brought to you by Exy Intellectual Property Malaysia