A logo can land you in legal trouble.

Whether willfully or unintentionally, creating a logo/graphic that infringes on the legally held trademark of an individual, business or other entity can potentially result in a business and/or individual being sued.

Recent examples abound, from Patagonia and Trader Joe’s suing a web-based T-shirt seller to a skateboard apparel brand slapping Phil Mickelson’s LIV Golf team with an infringement complaint.

So, what can promotional products companies that are rebranding or creating a new logo – or advising clients on logo and graphic creation – do to avoid becoming embroiled in infringement claims? Legal experts provide some answers here, while also giving guidance on what to do if you’re accused of infringement and how to handle an instance in which you feel your trademark has been violated.

The Basics of Trademarks & Infringement

A trademark is intellectual property consisting of a recognizable sign, design or word(s) that identifies and distinguishes a particular source, such as a business, and/or its products and services. A person, company or any legal entity can register a trademark to gain exclusive rights to the distinctive mark. Trademarks help ensure the public recognizes goods and services from a certain source or company – and that they’re not confused.

Under the Lanham Act, trademark owners can sue individuals, companies and other entities that they believe have infringed upon their legally held marks by using them without authorization. To prevail in court, the suing party would have to prove that the use of the logo, symbol, word or expression confuses, deceives or causes mistakes about the source of the mark among the public.

Tips for Avoiding Trademark Infringement

Get Advice From a Legal Pro: There’s a potential panacea when it comes to dealing with trademark issues: hiring a competent attorney for help.

“Whether a business is hoping to identify and procure trademark rights, defend their valuable goodwill in an existing mark, or respond to allegations of infringement by a third party, experienced trademark counsel can make a significant difference in the outcome and value of trademark assets,” says Derrick Davis, a trademark attorney with Trademarkia.

“It’s vital to ensure that your proposed mark is distinctive – not descriptive or commonly used in the industry – and not likely to be confused with existing marks.” Jason H. Rosenblum

Conduct a Comprehensive Trademark Search: Of course, attorneys don’t come cheap. And there’s research that promo companies can do on their own to see if a logo or graphic they’re creating may violate a trademark, experts say. This includes engaging in a trademark search in the U.S. Patent and Trademark Office’s Trademark Electronic Search System (TESS).

“By entering prospective marks of interest in TESS, business owners can identify and eliminate highly similar marks from their shortlist, which ultimately saves time and money in any legal fees to be incurred,” says Davis.

Still, the search shouldn’t be limited just to TESS, advises Jason H. Rosenblum, an intellectual property attorney and managing member of the Law Office of Jason H. Rosenblum, PLLC. “A search should also encompass common law sources like business directories, web searches and social media platforms,” Rosenblum says.

Trademark Your Logo: “This will not only protect your own trademark, but also put it through a thorough check to make sure it isn’t infringing on anyone else’s mark,” says Ben Michael, an attorney with Michael & Associates.

Create a Truly Unique Logo: While all designs take inspiration from somewhere, avoid the temptation to be overly derivative. Develop a logo or graphic that eschews color schemes, fonts and other design elements that could be associated with existing logos and brands, especially prominent ones.

“It’s vital to ensure that your proposed mark is distinctive – not descriptive or commonly used in the industry – and not likely to be confused with existing marks,” says Rosenblum. “Also, if you’re incorporating another work into your logo, you must ensure that you have the right to do so.”

What to Do If You Believe Your Trademark Has Been Infringed

Gather Evidence: Compile examples of instances that show the unauthorized use. This can include establishing where the alleged offending logo or graphic has been featured, such as on websites, social media or branded products. Documentation of such examples can be included in a cease-and-desist letter or lawsuit – if it comes to that.

Establish a Timeline of Use: Before you can truly say your trademark has been infringed upon, it’s important to determine a timeline to find out who began using the mark first and in what context.

In the U.S., Rosenblum explains, the first to use a trademark within a specific geographical area holds the rights to it. However, this can be difficult to determine. That’s part of why it’s important to register your trademark, since it provides constructive use throughout the U.S., Rosenblum says. “If you were the prior user, you may have a claim,” he explains. “But if the other party used it first, they could potentially keep using it, even if you have a registration.”

Your first step should probably be to reach out informally, letting the infringer know what’s happening and showing them your registered trademark so they’re aware of what they’re infringing on.” Ben Michael

Inform the Infringer of the Violation: If you’re confident your mark has been violated, consider initially seeking a remedy with a softer-handed approach, Michael says. “Your first step should probably be to reach out informally, letting the infringer know what’s happening and showing them your registered trademark so they’re aware of what they’re infringing on,” he advises.

Send a Cease-and-Desist Letter: If the informal approach falls flat, consider upping the ante with a formal cease-and-desist letter that demands the entity stop using your mark – or face legal repercussion. It’s advisable to have an attorney draft the letter.

File Suit: If the usage continues and you’re adamant that it stop, consult with your attorney on the advisability of filing a lawsuit. To win, you’ll have to prove the “likelihood of confusion standard.” According to Hendershot Cowart P.C., courts could consider a number of factors in evaluating if your complaint meets that standard, including similarities between the marks, proof there was actual confusion, and similarities in how goods/services are marketed.

“Using the exact same mark on the same type of product is clearly infringement,” Hendershot Cowart notes. “Naming your company ‘Apple’ and selling digital phones or laptops would likely cause any reasonable consumer confusion. On the other end, using the same term or mark for a completely unrelated product would not. Your ‘Apple Auto Parts’ company, for example, is easily distinguishable from ‘Apple Computers.’ In between those two extremes lie many trademark infringement cases, which can be quite complex and nuanced.”

Responding to an Infringement Claim

Evaluate the Claim: If you’re hit with a cease-and-desist letter or lawsuit related to trademark infringement, involve an intellectual property attorney. Such an expert will assess the potential validity of the claims – how strong the case may be against you. This can include evaluating the likeness of the logos, who used the graphics initially and who trademarked first.

Play an active role by providing your attorney with documentation and evidence that could support your defense, focusing particularly on anything that shows evidence of uniqueness, independent development and the timing of your logo creation and use. A top-notch attorney will analyze that and more against the claim to see if there are violations or a likelihood of creating confusion between the marks in the public sphere.

Defend or Desist: Once the evaluation ends, determine a course of action through frank discussion with your attorney. “If the claim is [valid], the business should take action to stop the infringement and potentially negotiate a settlement with the trademark owner,” says Rosenblum. “However, if the claim is found to be false, the business can demonstrate that its use of the trademark isn’t likely to cause confusion with the owner’s trademark. Sometimes pushing back and calling out the false allegations can settle the matter.”

Collaborate: If litigation occurs, a good attorney will guide you through the legal proceedings. Still, you can’t simply be passive. It’s important to communicate clearly and consistently with your attorney on proceedings, respond swiftly to legal correspondence, and efficiently provide any information that could help bolster your defense as the case evolves.