You’ve done it! You’ve finally hung the ~ “Come in, We’re Open” sign in the window, customers are pouring in and complimenting you on how wonderfully you have executed every detail of your lovely new shop down to the beautiful logo you have displayed on your signs, business cards, and on all of your merchandise bags! Then, only a few weeks into your new venture you get a letter from an attorney demanding that you stop using the name you have chosen for your new business within a very short amount of time or risk being sued for trademark infringement…
I’m sorry, WHAT…?!
Unfortunately, this scenario happens more often than you would think. You can minimize that risk, however, by taking a proactive approach to developing your brand before you invest time and money into your logo design, and certainly before you spend money putting your logo in print.
To be proactive, you have to first understand how trademark rights are created. Many people think trademarks are only for established companies who have been working for years on developing their brands, and have registered their trademarks with the United States Patent & Trademark Office; not so. Registering a trademark with the trademark office gives the registrant the exclusive right to use the name throughout the United States in the specific category of goods or services in which it is registered. However, you do not need a trademark registration to have common law trademark rights.
What are common law trademark rights? Common law trademark rights are rights that are established by use, not by registration. What does that mean? It means that you begin developing trademark rights from the moment you start using your brand in connection with the sale of the goods or services. However, unlike the national rights you gain with a trademark registration, common law trademark rights are limited to the geographic areas where you do business.
Whether the trademark rights are established by registration or at common law, the general rule is the first to use the mark is the one who has the exclusive right to continue using it, either nationally if it is registered trademark, or in a specific geographic area if it is not registered.
How does this information aid you in taking a proactive approach to your branding? As you begin to think of creative names for your business or your products here are some helpful steps to save you time, money, and the possible headache of having to rebrand what you have worked so hard to create!
Step 1~ Search the Internet and see what else is out there!
- Is there a business operating under a similar name? Is that business in your area?
- Does that business offer similar products or services to what you plan to offer?
- Has someone come up with a product name that is similar to what you had in mind for one of your products?
- Are the two products related or sold in the same industry?
If the answer to any of these questions is yes, you may decide to take your brand and business in a different direction to avoid potential conflicts.
Step 2~ You can also search the trademark office’s database of applied for and registered trademarks at www.uspto.gov.
- Is there a registration or an application for a registration pending in the trademark office’s database that is the same or similar to yours?
Again if you find a similar registration on file it may prompt you to take your brand in a different direction or if you decide you are still interested in pursuing your original idea you may want to consider consulting with a trademark attorney to understand what rights you may have in the brand, and how those rights may be limited by others who were in the marketplace before you!
Either way, taking a proactive approach to carefully research your business name and brand ideas or consulting with a professional will give you the peace of mind to move forward with confidence as you successfully build your brand and business!