Running a business in Texas means building a brand your customers can trust. But what happens when someone uses your name, logo, or slogan without permission? Or if someone accuses you of doing the same? That’s where trademark litigation comes in.
At The Polasek Law Firm (TPLF), we help business owners navigate the complex world of trademark law. With over 25 years of experience in trademark litigation, our team understands how to protect your brand and defend your rights.
The Basics of Trademark Rights
A trademark can be a name, logo, design, or slogan identifying your products or services. Depending on how you use these identifiers, you might have exclusive legal rights to them. But generally, a protected mark cannot be merely descriptive or a surname. And a protected mark cannot be easily confused with another.
There are three primary sources of trademark rights.
Common Law
You get common law rights just by using your trademark in business. If you’ve consistently used a name or logo, you may already have enforceable rights even if you never registered the mark. However, common law rights are limited and may be harder to prove than your rights after registering a trademark.
Texas State Registration
You can register a trademark with the Texas Secretary of State, which gives you broader rights across the state and creates a public record of your claim. Under the Texas Business and Commerce Code, registered trademarks receive stronger legal protection and make it easier to prove infringement in state court.
Federal Registration
Registering your mark with the United States Patent and Trademark Office offers the most protection. A federal registration gives you exclusive nationwide rights to use your mark in connection with your goods or services. Federal registration also allows you to bring trademark infringement lawsuits under the Lanham Act in federal court.
What Is Trademark Litigation?
Trademark litigation is the legal process of enforcing trademark rights. The law protects trademarks from being used by others if that use causes confusion among consumers.
Trademark litigation can arise in several situations, including when you discover another business is using your mark without permission, or someone accuses you of using a name or logo too similar to theirs.
In short, trademark litigation answers the question: Who has the right to use this mark in commerce?
What Happens in a Trademark Lawsuit?
If you’re contemplating or are already involved in trademark litigation, you might have to take the following steps.
Step 1: Filing the Complaint
A lawsuit begins when a plaintiff files a complaint in federal or state court. The complaint will likely claim that the defendant has used a confusingly similar mark and ask for legal remedies.
Once a trademark complaint is filed, it must be served along with a summons on the defendant to allow them to respond. After the defendant’s response deadline passes, the parties can engage in discovery.
Step 2: Discovery
Both sides gather evidence of trademark rights and infringement, or the lack thereof. This evidence could include:
- Logos,
- Registration paperwork,
- Marketing materials,
- Contracts,
- Photographs,
- Customer reviews,
- Sales records,
- Emails, and
- Witness testimony.
Your evidence can help the court understand how and when each party used the marks and the likelihood of confusion or intentional misconduct.
Step 3: Motions and Hearings
Parties may file motions to:
- Dismiss the case or certain issues,
- Request injunctions to stop the use of the mark, or
- Seek summary judgment.
These motions can help resolve the case early or narrow the issues for trial.
Step 4: Trial or Settlement
Many trademark disputes settle before trial. A party might agree to stop using a mark or pay for any damage they caused to the markholder’s business. However, if the case proceeds, the court will determine whether infringement occurred and what damages it should award.
Remedies for Trademark Infringement
If the court finds trademark infringement, several remedies are available, including:
- Injunctive relief—the court can order the infringing party to stop using the mark;
- Monetary damages—the court may award profits, actual damages, and legal costs;
- Treble damages—In cases involving counterfeit marks or willful infringement, damages may be tripled; and
- Destruction of infringing goods—infringing materials may be seized or destroyed.
These remedies are designed to stop the harm, punish bad actors, and compensate the trademark owner.
Defenses Against Trademark Infringement Claims
If you are sued for trademark infringement, you may have several defenses, including:
- No likelihood of confusion—consumers would not confuse your mark and the plaintiff’s mark,
- First use—you used the mark before the plaintiff did;
- Functional use—the mark is a feature of the product’s use or purpose and cannot be protected;
- Permission—you are using the mark with the markholder’s permission;
- Abandonment—the plaintiff stopped using the mark;
- Generic terms—your use contains only descriptive terms or a last name that you used in good faith to describe your product or its origin; and
- Fraud—the plaintiff registered or used the mark fraudulently.
The law recognizes these defenses and more. Our Houston trademark litigation attorney can help you determine which defenses apply.
What Is the Cost of Trademark Litigation?
One of the biggest concerns for business owners is the cost of trademark litigation. A case may cost many thousands of dollars, especially if it goes to trial.
Potential costs can include:
- Filing fees, which can cost around $400, depending on where you file;
- Attorney fees, which may be charged by the hour and require dozens or hundreds of hours of legal work;
- Expert witness fees for experts to testify about consumer confusion, branding, or damages; and
- Discovery costs to cover collecting and reviewing documents, conducting depositions, and managing evidence.
At TPLF, we work with clients to manage costs, explore early resolution, and use litigation strategies tailored to your financial and business goals.
When to Hire a Trademark Litigation Attorney
You should talk to a lawyer right away if:
- You receive a cease-and-desist letter,
- Another business uses your name or logo,
- You’re building your brand and want to secure your rights, or
- You’ve been sued.
A top Houston trademark litigation attorney from TPLF can evaluate your options to protect your brand and represent you in court if needed.
Choose The Polasek Law Firm Today
The Polasek Law Firm is a top intellectual property litigation firm located in Houston, Texas. Our attorneys have several decades of experience providing clear and strategic advice. We fight to protect your brand and help your business succeed.
If you have questions about your trademark rights or are involved in a dispute, contact us online or by phone today. We’re ready to help you protect what you’ve built.
Resources:
- Texas Secretary of State, “Trademarks FAQs,” link.
- Federal registration as evidence of right to exclusive use; defenses, 15 U.S.C. § 1115 (Jul. 2, 2025), p. 246, link.
- United States Patent and Trademark Office, “I’ve Been Sued…,” link.
- State remedies, Tex. Bus. Code § 16.104 (2012), link.
- Federal remedies, 15 U.S.C. §§ 1116-1118 (Jul. 2, 2025), pp. 247-252, link.
- Sipe, Matthew G. “A Fragility Theory of Trademark Functionality.” University of Pennsylvania Law Review. Vol. No. 169, 2021, link.
- “District Court Civil Filing Fees,” (Jan. 1, 2024), link.
- United States District & Bankruptcy Court: Southern District of Texas, “Fee Schedule Effective December 1, 2023,” link.
Ted Polasek
Ted was a founding partner of Polasek, Quisenberry & Errington, L.L.P. (PQE), a firm that represented patent owners and companies accused of patent infringement. For nearly 25 years, Ted’s core practice has been litigating patent infringement cases, for hourly and clients on a contingent fee or other result-oriented basis. Ted attended the South Texas College of Law and graduated cum laude with his Juris Doctorate in 1990 and received a B.S. in Chemical Engineering from the University of Texas.
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