How Long is Too Long to Wait to Sue for Trademark Infringement

One of the most common questions trademark owners ask after discovering a potential infringement is deceptively simple: Is it too late to sue?

Unlike many areas of law, trademark infringement does not come with a clean, universally applicable statute of limitations. That does not mean timing is irrelevant. To the contrary, delay can be outcome-determinative, but not in the way most people expect.

Whether waiting to sue hurts your case depends on a combination of factors, including continuing harm, equitable defenses like laches, and in extreme cases, whether your own conduct suggests abandonment of the mark. Understanding how these doctrines interact is critical before deciding whether to act now, later, or not at all.

No Statute of Limitations Under the Lanham Act

The Lanham Act does not contain an express statute of limitations for trademark infringement claims. Federal courts have repeatedly recognized this absence and have filled the gap by borrowing analogous state statutes of limitations for equitable purposes, not as hard bars.

In practice, this means:

• There is no fixed deadline, such as “four years from infringement.”
• Delay alone does not automatically defeat a trademark claim.
• Courts evaluate timing through equitable doctrines rather than rigid calendars.

Because trademark infringement is often ongoing rather than discrete, the absence of a statute of limitations reflects the reality that harm can continue as long as confusing use continues.

Continuing Harm and Ongoing Infringement

Trademark infringement is typically treated as a continuing violation. Each new sale, advertisement, or display of the allegedly infringing mark can constitute a new act of infringement.

As a result:

• A plaintiff is not barred from suing strictly because infringement began years earlier.
• Courts routinely allow claims based on recent conduct, even if the defendant has been using the mark for a long time.
• Remedies may still be limited by delay, even if liability is not.

This distinction is critical. You may still be able to sue, but what you can recover and what relief you can obtain may be affected by how long you waited.

Laches: Delay That Prejudices the Defendant

The primary doctrine used to police delay in trademark cases is laches, an equitable defense that focuses on fairness rather than clocks.

To successfully assert a defense of laches, a defendant must show: 

1. The plaintiff delayed in asserting a right or a claim; 
2. that the delay was not excusable; and 
3. that there was undue prejudice to the party against whom the claim is asserted.

See Pinnacle Advert. & Mktg. Grp. v. Pinnacle Advert. & Mktg. Grp., LLC, 7 F.4th 989, 1005 (11th Cir. 2021).

Courts often look to the most analogous state statute of limitations as a benchmark when evaluating reasonableness, but that benchmark is not dispositive. Even delays longer than the analogous period may be excused, while shorter delays can still support laches if the circumstances warrant. 

For example, for infringements occurring in Florida or California, courts apply those states’ four-year statutes of limitations for state law-based claims “as the touchstone for laches” in a trademark case under federal law. See Pinnacle Advert. & Mktg. Grp., 7 F.4th at 1005; and Eat Right Foods, Ltd. v. Whole Foods Mkt., Inc., 880 F.3d 1109, 1115 (9th Cir. 2017). However, the applicable time period varies from state to state. For example, in states like Washington, it is three years. See Eat Right Foods, Ltd. v. Whole Foods Mkt., Inc., 880 F.3d 1109, 1115 (9th Cir. 2017).

Importantly:

• Laches is highly fact-dependent.
• Knowledge of infringement matters. Delay is measured from when the plaintiff knew or reasonably should have known of the infringement.
• Prejudice can be economic (investment in branding) or evidentiary (loss of witnesses or records).

Many courts also distinguish between prospective relief and backward-looking relief. Even where laches limits damages, courts may still grant injunctive relief to stop ongoing confusion, particularly where consumer harm is clear.

Abandonment: When Delay Becomes Dangerous

At the far end of the spectrum is abandonment, which is not a defense based on delay alone, but on the trademark owner’s conduct.

Under the Lanham Act, a mark may be deemed abandoned if:

• Its use has been discontinued with the intent not to resume, or
• The owner’s actions (or inaction) cause the mark to lose its significance as an indicator of source.

Failure to police a mark does not automatically result in abandonment. However, systematic, prolonged non-enforcement, particularly in the face of widespread third-party use, can be used as evidence that a mark has become diluted or generic, or that the owner no longer treats it as a source identifier.

This is why selective enforcement decisions should be intentional and documented. Doing nothing is different from choosing not to pursue a particular infringer for strategic reasons.

Concurrent Use Without Actual Confusion

A final consideration is the problem of actual confusion, or its absence. Trademark infringement is based on “likelihood of confusion.” The strongest evidence of the likelihood of confusion is actual consumer confusion. But the inverse can also be true. Continuous concurrent use without actual confusion can be powerful evidence that there is no likelihood of confusion. While evidence of actual confusion is not necessary to establish likelihood of confusion, courts routinely find against plaintiffs who have delayed in suing for trademark infringement when long periods of concurrent use have elapsed without documented instances of actual confusion, or with very little actual confusion. See, e.g. Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 263 (5th Cir. 1980)(“the fact that only three instances of actual confusion were found after nearly 15 years of extensive concurrent sales under the parties’ respective marks raises a presumption against likelihood of confusion in the future”); and Oreck Corp. v. U.S. Floor Sys., Inc., 803 F.2d 166, 173 (5th Cir. 1986)(holding concurrent use in market for 17 months with no actual confusion is “highly significant”). 

It’s important to note that time is not the only factor at play here. The question is not how long the marks have been in concurrent use, but whether consumers have been sufficiently exposed to the marks to test the likelihood of confusion. For example, in one case in which the allegedly infringing product had only been on the shelf for about 8 months, the Eleventh Circuit concluded that “there was enough opportunity for confusion to make the absence of any evidence significant. Uncontroverted testimony at trial established that Anastasia sold 248,075 Gleam Glow Kits, totaling over $5 million in revenue. The product was posted on Anastasia’s corporate social media accounts, which have millions of followers. And still, Hard Candy did not produce any evidence that a customer was ever actually confused about the source of the Gleam Glow Kit.” See Hard Candy, Ltd. Liab. Co. v. Anastasia Beverly Hills, Inc., 921 F.3d 1343, 1362-63 (11th Cir. 2019).

Although the law recognizes that finding evidence of actual confusion can be difficult, and courts sometimes give plaintiffs some leeway on that factor, the safest course of action is to take immediate action to stop an infringer. Time is not on a plaintiff’s side in infringement litigation. 

Practical Takeaways for Trademark Owners

Timing decisions in trademark enforcement are rarely binary. The better question is not “Is it too late?” but rather “What has delay changed?”

Key considerations include:

• How long have you known about the infringement
• Whether the infringing use is expanding or changing
• Whether the defendant has materially relied on your silence
• Whether consumers are actually confused in the marketplace
• What remedies you realistically need, as opposed to what is theoretically available

In many cases, early action preserves leverage even if litigation is not imminent. In others, delay can be defensible where infringement is de minimis, geographically remote, or unlikely to cause confusion.

Conclusion

Trademark law does not punish delay reflexively, but it does remember it. Waiting to sue does not automatically bar a claim, but it reshapes the battlefield. Remedies narrow. Defenses strengthen. Narratives shift.

The longer the infringement continues without response, the more the dispute becomes about equity rather than entitlement.

For trademark owners, the right timing is rarely about speed alone. It is about acting deliberately, with a clear understanding of how courts will view silence, tolerance, and enforcement when the dispute finally comes to a head.

To discuss protecting or enforcing your trademark rights, contact Jimerson Birr.