You've had a moment of business inspiration. You've generated an idea that you can't wait to share with the world because you know it's a winner!
The whole plan is in your mind. Your business name, packaging, marketing strategy, design for an amazing website: it's all there. There's one crucial step you need to take before you start promoting your brand or your whole plan could quickly crash and burn.
If you haven't properly researched and registered the trademark for your new business you leave yourself open to what could be very damaging and expensive liability due to trademark infringement.
With over 4 million trademark registrations worldwide in 2015 alone (WIPO Statistics Database), it's important to make sure your brand is not built on the same territory as anyone else's.
Follow these steps to protect your business from trademark infringement lawsuits.
First of all, make sure you understand what a trademark is. It's not the quite same thing as a patent or copyright, although these areas of law do overlap.
A trademark is a sign which can be graphically reproduced like a logo, or product name, or even a sound. It identifies your product or service with you or your company as the producer or seller.
Trademark infringement is a problem if two or more businesses have trademarks which are too similar. This can cause confusion among customers and other legal problems. If your trademark is too close to another existing trademark, you could be in for expensive legal disputes. The best way to avoid trademark infringement is to make sure your brand is unique at the outset.
Do your homework
You've got a great name for your business idea. Go ahead and do an internet search and see what happens. If the name is too broad, add some important keywords related to your business.
Don't just look at the first page of results. Scroll down for several pages. Is there anything out there that seems similar to what you're planning to offer? If so, consider tweaking or changing that name. The same thing can be done with your logo using Google image search.
Hire a trademark lawyer
You can't find anything that sounds like your trademark? That's great. Now it's time to contact your legal team to do some more detailed research.
The United States Trademark and Patent Office recommends hiring a lawyer to help you through the process of trademark registration. A lawyer who specializes in trademark law will help you complete the application and do thorough research to ensure you're not infringing on another trademark.
Setting out on the right track from the start can save you a lot of time and money in legal fees and/or re-branding down the road.
It's not too late to avoid trademark infringement
You've already started your business. You've made up cards and a website, your product is on shelves. You did your research for your local area but things are growing faster than you expected. You're not sure that your trademark doesn't conflict with businesses on a national or international level.
What now? Do you just wait and hope for the best? This is an easy problem for a small business to find itself in. You could just wait and see what happens. The problem is, if there is a potential trademark infringement out there, it's not going to get better. The bigger your business gets the more likely it is someone will come forward and try to benefit from your success after the fact.
It's always better to be proactive. Contact your lawyer to research the trademark you're using. If there are potential issues you're better off being in control of the situation. You can choose whether you want to change your brand, or offer to buy the trademark from its owner. Re-branding might be expensive, but it's only going to get costlier and more difficult if you are forced to do it later on.
Just because you're small, it doesn't mean you're safe
You may not plan on growing your business to a state-wide, national, or international level. That doesn't mean you don't have to worry about trademark infringement.
The craft beer industry is a perfect example of this. Many small companies start up out of a home-based business. They have a great product and they grow a lot. Bad Apples Brewing in Nova Scotia, Canada, lost important business and had to change their name due to not having done their research on a national level.
It's more than just a name
When Victor Mosely named his sex toy shop "Victor's Secret" he may have thought he was making a funny pun on the name of lingerie giant Victoria's Secret. When Victoria's secret took him to court for trademark infringement and won, it probably no longer seemed funny.
Trademark law states that infringement happens not only when the use of the trademark causes confusion, but can also occur when the use of the trademark damages the reputation of the registered owner. In this case, Victoria's Secret successfully argued that Victor's Secret could create a negative impression for customers just by sounding similar to their brand.
Large companies can and will assert their trademark rights. It's best to avoid any references to other products or companies in your trademark, no matter how funny it could be.
Don't make assumptions
Many people are aware of brands which have become so associated with a kind of product they are no longer recognized as trademarks. Brands like aspirin or kleenex are examples of this. You might be surprised to know about some other commonly used words that are, in fact, trademarks. For example, DC comics and Marvel have joint trademark rights on the term Super Hero.
Another common mistake comes up when registering your website's domain name. Just because you can legally register a domain name doesn't mean it can't lead to trademark infringement. If your domain name is similar to a registered trademark you may be required to show that your use of the domain is totally different from that of the trademark holder.
Trademark protection in a nutshell
- Perform extensive research before you start
- Hire legal experts to help
- If you've already started, be proactive
- Never make assumptions
Contact us for more information on how we can help you register your trademark and protect your growing business from trademark infringement liability.