You’ve all but cried yourself to sleep deliberating the perfect business name.
You’ve invested countless hours brainstorming a tagline you can use on your website, business cards, social media accounts, and beyond.
Your branding is in place and you’re ready to share your genius with the world.
But what if someone told you had to start all over again and there was nothing you could do about it?
Devastating, right?
Unfortunately, that’s all too real for some small business owners.
Don’t bury your head in the sand with the belief that it won’t happen to YOU.
The most important thing you have to do before naming your business, product or service is conduct a trademark search.
Let’s start with a brief overview of what a trademark is.
**But first, a little legal disclaimer: this is legal education and information. It’s not business, financial, or legal advice, and it doesn’t create an attorney-client relationship between us.
You should chat with an attorney in your area to make sure you’re protecting your business, okay? Okay! Moving on.**
What is a trademark?
A trademark is any word, name, symbol, or graphic used in commerce to indicate the source of a product.
(Quick note: a service mark relates to a service, but since trademarks and service marks are handled similarly under US law, let’s lump them together for now.)
A trademark could be your business name, service or product name, course name, tagline, logo, and more.
Trademarks may be unregistered under your state’s common law rights or registered (and therefore only protected) within your individual state.
Or they can be federally registered with the United States Patent and Trademark Office (USPTO) for a lot more rights and protection that covers you — you guessed it — federally.
The benefits of registering your trademark
The number one benefit of federal trademark registration is that you can enforce your exclusive rights to that registered mark across the US.
Plus, federal registration means:
- The ® symbol can be used to alert potential infringers of your registration;
- You could sue for infringement in federal court;
- You can recover attorney’s fees and damages if your infringement lawsuit is successful;
- An easier process registering your trademark internationally;
- You’ve secured a valuable asset for your company.
And after 10 years of full statutory protection, you can renew indefinitely, so long as you file the correct forms and continue to use the mark.
That all sounds great, right?
It absolutely is but before you settle on the perfect name for your business, product or service, you need to ensure you aren’t building your whole empire on borrowed ground.
Why a trademark search is vital to your brand
These are the keywords in trademark law: Likelihood of confusion
Because, here’s the thing — even if your trademark isn’t an exact match for another, it also may be similar enough to another mark that a consumer is likely to be confused about the source of the product or service.
To make that determination, you have to look beyond the similarity of the marks themselves to the relatedness of the goods and services.
Let’s look at an example:
Delta (airline) and Delta (faucets)
Same name, both protected under federally registered trademark laws. How can that be?
Because a consumer is highly unlikely to confuse their bathroom sink with an airplane.
But you can’t be confident your own business, product, or service name will avoid potential risks or liability issues until you conduct a trademark search.
Conduct your own “knockout search” before a comprehensive trademark search
Before you spend good money hiring a lawyer to conduct a trademark search for you, do your best super-sleuth impression.
- Look on social media sites
- Check out domain hosting sites
- Dig around beyond page one of Google
- Check for existing registrations within your state and federally
If your quick peek around shows no existing conflicts, you’re ready for a much more comprehensive trademark search.
Your trademark search will dive even further into corporate and trade name filings (including common law usage) within your state and a complete look at registrations within TESS (Trademark Electronic Search System) through the USPTO.
To make sure similar matches are ruled out, your trademark search will also include things like:
- different spellings (including homophones like ‘ate’ and ‘eight’)
- misspellings
- singular/plural versions
- foreign language equivalents
- hyphenated and non-hyphenated versions
The key is making sure there is no ‘likelihood of confusion.’
If the names are close enough and in the same or similar industries, I hate to break it to you, but you may have an issue.
In which case, I promise you that name you love so much isn’t worth the headache of a rebrand later on.
A trademark search helps you “look before you leap”
Performing a trademark search before you proceed with the creation of your business, product, or service means you aren’t just jumping blindly off the deep end.
While no one can be 100% sure there isn’t another conflicting mark in existence, you’ll have peace of mind that there are no exact matches out there.
So using your mark won’t lead you down a path that ends with nasty infringement claims.
Plus, when you’re ready to register your trademark, you’ll have drastically improved odds that it goes through without any likelihood of confusion issues.
If you’ve done your own “knockout search” and you’re ready for a more in-depth search, work with an attorney.
You can book your consultation here and get your branding locked down with a federal trademark registration.
