Trademark Searching: The Not-So-Glamorous, Yet All-Too-Important Step in Brand Identification

February 18, 2016
Post by Jonathan L. Kennedy

When you are in the process of branding your company, products, or services, the idea of trademark searching can sound boring and maybe even appear to be an unnecessary expense. However, a proper trademark search can prevent the stress and costs of rebranding and defending a possible law suit, which can be in the realm of thousands of dollars to hundreds of thousands of dollars, if not more. All too often, businesses—especially small, start-ups—are either unaware of trademark searching or are looking for some expenses to cut back on and decide not to perform a trademark search. Subsequent to investing in a brand image, the business may receive a letter threatening a law suit over its new brand image. This can come as a big surprise and seem unlikely, but it happens regularly. So here are some reasons why performing a thorough trademark search can be so beneficial:

  • A trademark infringement law suit does not require that an identical mark be used, rather the question is whether a mark likely to cause confusion or dilutes an existing mark.
  • Trademarks can be almost anything, e.g., colors, sounds, phrases, words, letters, and logos.
  • A trademark may not be in use near you to have rights near you. For example, a federal trademark registration provides trademark rights and presumptive use of the mark across the entire United States.
  • A trademark holder does not have to compete with you to be able to sue you for trademark infringement.
  • Unregistered trademarks can be enforceable as common law trademarks.
  • The availability of a domain name does not mean the same is available as a trademark.
  • Registration of a domain name does not necessarily create trademark rights, but can be found to infringe trademark rights.

 Performing a trademark search, and obtaining a legal opinion, is relatively inexpensive, particularly, when you contrast it with the expense of rebranding or defending a trademark infringement law suit.

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The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.


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