Everyone wants to create a catchy and memorable name for their new business. Trademark law is designed to help protect these original names by granting exclusive rights to those who obtain a trademark. This can limit the availability of names for your new business or product, so it is important to research a potential name before settling on it. Even sophisticated entrepreneurs overlook this issue and inadvertently commit trademark infringement, which can result in the loss of business goodwill as well as legal consequences.
What is a trademark?
A trademark is a word, phrase, symbol, design, or a combination thereof, that identifies and distinguishes the source of a good or service (As applied to services, it’s technically called a service mark). If a mark is registered, the person who registers the mark gets exclusive rights to use the mark. In some cases, even a person using an unregistered mark may have exclusive common law rights to use a mark.
What is trademark infringement?
Infringement occurs when someone other than the trademark holder uses the registered mark or a mark that is confusingly similar without authorization from the trademark holder. If this happens, the trademark holder may enforce their exclusive rights and seek legal remedies against the infringer.
Why should I care about trademark law?
What you don’t want as an entrepreneur is to be slapped with a cease and desist letter after years of investing your time and energy building your business name and reputation. I have seen this happen and it can devastate a small business. It is common for trademark holders not to assert their exclusive rights immediately upon infringement because they may not know about the infringement or they may not feel threatened by the use of a similar name until that name gains popularity. Thus, a belated cease and desist order is more problematic after you build a website, print business cards, and acquire customers using a business name that infringes upon a registered trademark.
What can I do to protect my business?
Search for companies with a similar name in your industry and outside your industry before settling on a name for your new business or product. Search the domain registries to determine if the .com or other top-level domains are registered for your potential name. If you come across a registered domain name or a business name bearing the ® or ™ symbol it is likely the name is trademarked. You can also quickly search federally registered trademarks on the U.S. Patent and Trademark Office webpage by clicking here.
Lastly, consult a trademark attorney for legal advice in this area. An attorney can be a valuable resource and can help you determine if a name or domain name is safe to use. An attorney can also help you file a trademark application thereby granting you the exclusive rights to use your new business name.