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To Sue or Not to Sue for Trademark Infringement
A strong trademark can be a company's most significant asset. Infringement, however, can strip the trademark of its value by causing “confusion among consumers” as to the identity and origin of the client's product.
Small to mid-size corporations faced with such damaging infringement may have a serious budgeting challenge. If the infringer ignores corporate counsel's cease-and-desist letter, their clients will be forced to file suit to halt the infringement. To succeed in the litigation, the trademark's owner will be required to prove, among other things, that the infringer's use of a mark is likely to cause consumer confusion.
But the price of success may be prohibitively expensive. Absent evidence of actual confusion, an aggrieved plaintiff will typically need to prove confusion with so-called consumer survey evidence. Such evidence may cost a plaintiff $100,000 or even more. This steep cost, on top of legal fees, may be too high a barrier for a small business, leaving their intellectual property vulnerable to misappropriation by more powerful infringers.
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