Let it be known: Temu will use all legal means necessary to protect its trademark rights. Since its stateside launch last September, Temu has already filed nine federal lawsuits for alleged trademark infringement. For the unfamiliar, Temu offers discounted products, in large part, by shipping them from China directly to consumers. Approximately four months after launch, Temu surpassed Amazon and Walmart to become the most downloaded app in the United States. Temu is now addressing the same issue that plagues many other up and coming brands: unauthorized trademark use.
The Temu Trademark Lawsuits
Temu is the valid owner of federal trademark registrations for the word mark "TEMU" and the Temu logo, produced below, for the "[p]rovision of an online marketplace for buyers and sellers of goods and services."
Dating back to when Temu went live in September 2022, Temu has used its trademarked logo and "TEMU" to identify its closed-loop marketplace services. Furthermore, Temu alleges that it has spent millions of dollars on marketing and the development of its brand.
As of this writing, Temu is pursuing nine trademark infringement lawsuits with similar fact patterns. Temu alleges that offending Internet websites use Temu trademarks without its authorization. By displaying Temu's logo, word mark, or both, Temu alleges that defendants are creating confusion among the consuming public as to the affiliation between Temu and the defendants' websites. As a result, Temu suffers possible harm to its business reputation. Accordingly, Temu seeks immediate injunctive relief in the form of court orders directing that the allegedly offending websites be shut down, and for monetary damages, that include any gains that defendants may have realized from their unauthorized use of the Temu trademarks.
Why are the Temu Lawsuits Relevant to Your Business?
Businesses spend a great deal of time and money on developing their brands. Once successful businesses take flight, their owners have a duty to actively protect their trademarks and associated goodwill. Those that do not stay vigilant risk the dilution or tarnishment of their proprietary trademarks. Unless the use of a registered third party trademark falls within one of the two exceptions below, unauthorized users may quickly find themselves defending a trademark infringement lawsuit:
- Classic fair use, or descriptive fair use, allows the use of another's trademark to describe one's own goods or services. This trademark use does not indicate the source of goods or services; it only uses the word that is registered as a trademark to describe them.
- Nominative fair use allows for use of another's trademark to describe one's own goods and services, provided that they cannot otherwise be easily identified. For instance, when a computer program instructor promotes his or her courses, the advertisements may contain the name of the software as long as they do not falsely suggest an affiliation with the subject software company.
Neither fair use exception appears to apply to defendants' trademark use in the Temu lawsuits. Instead, it is alleged that numerous website operators took notice of Temu's success and tried to illegally ride on its coattails. According to Temu's complaints, the defendants have used Temu's logo and/or word mark without a license to do so in order to trick customers into transacting with their websites. Now, Temu is pursuing these operators to the fullest extent of the law.
As Temu is demonstrating, the unauthorized use of registered trademarks can result in a wide range of penalties. For starters, a trademark infringement complainant will typically seek a temporary restraining order ("TRO") from the presiding court. TROs are "ex parte" actions, meaning that they can be sought without notice to the offending party. Once a TRO is granted, courts will typically require that TROs be addressed within 48 hours before they become preliminary injunctions, which can last months. Businesses accused of unauthorized trademark use often need to scramble to secure resources and adequate funds just to address a TRO, let alone the substance of the underlying claims contained in the trademark lawsuit itself.
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