Trademark infringement – ​​what is the situation?

Trademark infringement is the use of a (too) similar sign for (too) similar products without the permission of the trademark holder. Legal basis: Article 9 of the EU Trademark Regulation and Article 2.20 of the Benelux Treaty. In the event of infringement, the trademark holder may demand an injunction, damages, and disgorgement of profits. Procedural length: cease and desist letter → summary proceedings → main proceedings. Costs can rise to €50,000+ for longer proceedings. Acting promptly prevents trademark dilution. Below: when is something an infringement, how do you enforce it, and what does Maya do if a competitor “translates” her logo?

The short answer

• When: identical or similar sign + same or similar products + risk of association.
• What is demanded: injunction, damages, surrender of profits, destruction of counterfeit goods.
• Procedure: summons → summary proceedings (4-8 weeks) → main proceedings (1-2 years).
• Costs: demand letter €500-€2,000, summary proceedings €3,000-€10,000, main proceedings €10,000-€50,000+.
• Act in a timely manner: inaction weakens one's own rights.

When is it an infringement?

Three scenarios under Article 9 of the EU Trademark Act and Article 2.20 of the Benelux Trademark Act:

1. Identical mark + identical products

Literal copy of a trademark for the same products — e.g. counterfeit Nike shoes with a Nike logo. Almost always infringement, no further proof required.

2. Similar sign + similar products + risk of association

Similar trademark for similar products — e.g. “Coca-Cole” for soft drinks, or “Adibas” for sportswear. Infringement if consumers are likely to be confused (“risk of association”).

Judge's assessment based on:

• Visual resemblance (looks like).
• Phonetic similarity (sounds like).
• Conceptual similarity (same meaning).
• Product similarity.
• Recognition and distinctiveness of the original brand.

3. Well-known brand + other products

For “well-known brands” (Coca-Cola, Apple, etc.), also protection against use in OTHER product categories if this impairs distinctiveness or reputation. E.g., “Coca-Cola” trademarks on cars.

What can you demand?

• Prohibition: cease use, under penalty of a fine (€1,000-€25,000 per violation).
• Compensation: lost profits, unjust enrichment of the infringer.
• Disgorgement of profits: all profit made by the infringer from counterfeit products.
• Destruction: destroy seized counterfeit goods.
• Litigation costs: to be borne by the infringer (full actual costs in IP cases).
• Publication of judgment: in advertisements or online — reputation restoration.

Procedure

Step 1: Summons (1-4 weeks)

Letter from IP lawyer to infringer — cease use within the time limit (often 14 days), otherwise legal proceedings. Half of trademark infringements stop after a cease and desist letter.

Content of summation:

• Description of the infringement with evidence (photos, screenshots).
• Reference to registered trademark.
• Cessation period (typically 14 days).
• Demands: cease and desist order + damages + surrender of profits.
• Warning of legal action.

Step 2: Summary proceedings (4-8 weeks)

In the absence of a response: summary proceedings for an immediate measure (injunction + penalty payment). Demonstrate an urgent interest. The judge will decide within weeks.

For: prompt stop to infringement. Against: only provisional — substantive proceedings still possible.

Step 3: Soil case (1-2 years)

Final judgment with damages, disgorgement of profits, and order for costs. For larger cases or where the infringer opposes a summary proceedings ruling.

Calculate compensation

According to the IP Enforcement Directive, three options:

1. Real damage: lost profits, lost marketing investment, reputational damage.
2. Fixed damages: hypothetical license fee (what would you have charged for permission?).
3. Disgorgement of profits: all profits the infringer obtained from the infringement.

The brand owner chooses the most advantageous option. For well-known brands, this often amounts to tens of thousands to millions of euros.

International infringement

An EU trademark is valid in 27 countries — enforcement via a Dutch court can impose an EU-wide injunction. For worldwide infringement: separate proceedings per country or via UDRP (cybersquatting), customs enforcement (counterfeiting at the EU border), or international cooperation.

What does customs do?

Registered EU trademarks can be notified to EU Customs. Customs inspects imports and intercepts suspicious shipments. For SME brands in fashion, electronics, and cosmetics: an important defense against counterfeiting from Asia.

Maya's situation

Maya discovers “Maja Design Studio” — Belgian company with a similar logo and in the same industry.

• Name: similar phonetically (Maya/Maja) and visually (similar layout).
• Services: identical (graphic design).
• Class: 35/42 — same as Maya's MayaDesign.
• Risk of association: high.

Maya engages IP lawyer for cease and desist letter. Costs: €750. Belgian company responds within 2 weeks: ceases use of name, pays €5,000 in damages, rebrand within 6 months. Proceedings terminated without summary proceedings.

Honest recommendation

In the event of trademark infringement: act within weeks. Inaction weakens rights (doctrine of neglect: years of acceptance can constitute acceptance). Start with a cease and desist letter via an IP lawyer (€500-€2,000) — often sufficient. For escalation: summary proceedings (€3,000-€10,000). If a decision is made to proceed to a main trial: reserve a budget of €10,000-€50,000+. For global trademarks: monitoring service and proactive registration in growth markets.

For other topics: trademark registration, trademark register and what is intellectual property.

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