Someone Is Selling Your Product Under a Different Name. Now What?

You spent years building a brand. Your name, your logo, your reputation — all of it. And then one day you discover that someone else is using something so similar that your own customers are getting confused.

It happens more often than most business owners expect. And the question of what to do about it is more nuanced than it might seem.

What Trademark Infringement Actually Means

Trademark infringement occurs when someone uses a mark — a name, logo, slogan, or other identifier — that is likely to cause confusion among consumers about the source of goods or services. The key phrase is "likely to cause confusion." You don't have to prove that consumers were actually confused, only that confusion is a reasonable likelihood given how similar the marks are and how related the goods or services are.

Courts look at a number of factors when evaluating likelihood of confusion, including how similar the marks look and sound, how closely related the products or services are, the strength of the original mark, how sophisticated the typical consumer is, and whether there's any evidence of actual confusion in the marketplace.

Not every similar mark constitutes infringement. Two businesses can use similar names if they operate in completely different industries and markets, and if there's no realistic chance that consumers would confuse one for the other. The analysis is always fact-specific.

Your First Step: Understand What Rights You Have

Before you do anything else, you need to understand what trademark rights you actually have — because that determines what leverage you have and what options are available to you.

If you have a federal trademark registration, you're in a strong position. Registration gives you a legal presumption of ownership, nationwide priority, and the ability to bring a claim in federal court. It also gives you access to certain remedies — including statutory damages and attorneys' fees — that aren't available to unregistered mark owners.

If you don't have a federal registration but you've been using the mark in commerce, you may have common law trademark rights based on that use. These rights are real, but they're geographically limited and harder to enforce. Your leverage in any dispute will depend heavily on how long you've been using the mark, in what markets, and how well-documented that use is.

Cease and Desist Letters

In many infringement situations, the first step is a cease and desist letter — a formal written demand that the other party stop using the infringing mark. A well-drafted cease and desist letter does several things: it puts the other party on notice that you're aware of the infringement, establishes a record that you've taken action, and in many cases prompts a quick resolution without further legal proceedings.

The tone and content of a cease and desist letter matters. An overly aggressive letter sent to the wrong party can create legal exposure of its own. A letter that's too vague or too accommodating may not be taken seriously. Getting it right requires understanding both the legal merits of your position and the practical dynamics of the situation.

Sometimes the other party responds by arguing that they have prior rights, that the marks aren't actually confusingly similar, or that their use falls within an exception. Those responses need to be evaluated carefully before you decide on next steps.

USPTO Opposition and Cancellation Proceedings

If the infringing party has filed a federal trademark application — or already has a registration — you have options through the USPTO itself.

If their application is still pending, you may be able to file an opposition during the 30-day opposition window after the mark is published for opposition. An opposition is a proceeding before the Trademark Trial and Appeal Board (TTAB) in which you argue that the applied-for mark should not be registered.

If they already have a registration, you may be able to petition for cancellation under certain circumstances. These proceedings are conducted before the TTAB and are less expensive than federal court litigation — but they have their own procedural requirements and timelines.

Federal Litigation

When a cease and desist letter doesn't resolve the issue and TTAB proceedings aren't the right fit, federal court litigation may be necessary. Trademark cases are heard in federal district courts, and the remedies available include injunctive relief — a court order requiring the other party to stop using the mark — as well as monetary damages, disgorgement of the infringer's profits, and in cases of willful infringement, attorneys' fees.

Litigation is expensive and time-consuming, and it should be approached as a last resort rather than a first response. But sometimes it's the only way to stop an infringer who isn't going to respond to anything less.

Protecting Yourself Going Forward

If you've discovered an infringement issue, it's also worth taking a hard look at whether your own protections are where they need to be. Do you have federal trademark registrations in place for all the marks that matter to your business? Are you monitoring for new applications that might conflict with yours? Are you documenting your use of your marks consistently?

Trademark protection is an ongoing process, not a one-time filing. The businesses that are best positioned to protect their brands are the ones that treat IP as a regular part of their legal and business planning — not something they think about only when there's already a problem.