What to Expect and How to Prepare

Trademark litigation is a marathon, not a sprint. Here’s what plaintiffs should expect and how to prepare:

Case Examples

Federal courts have decided landmark cases clarifying trademark rights. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992), confirmed that trade dress (packaging, the look and feel of a restaurant, etc.) can be protected without secondary meaning. Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995), held that even color can serve as a trademark. These precedents show the broad reach of trademark law when properly litigated.

Practical Timelines

Trademark cases typically last 18–36 months from complaint to final judgment, depending on the complexity of discovery, motion practice, and whether trial is necessary. Settlement is common at various stages, particularly after damaging evidence emerges in discovery.

Strategic Considerations

Trademark plaintiffs must weigh costs, risks, and potential outcomes. Sometimes, a negotiated settlement with an injunction is preferable to a costly trial. Publicity is another factor: litigation can shine a spotlight on your brand and the infringer, for better or worse.

Documentation Checklist

Before contacting counsel, trademark owners should gather:

• Trademark registration certificates

• Evidence of your first use of the trademark in interstate commerce, such as a web page screenshot with dates, an email, a poster, and so on

• Marketing and advertising materials

• Evidence of consumer confusion (emails, social media posts, surveys)

• Records of sales declines or lost accounts

• Any prior communications with the infringer

A well-prepared client strengthens the case from the outset.