It happens. Small business owners casually name their product or service and step right into the trademark infringement land mine. Has your small business taken the necessary steps to protect against trademark infringement?
In Elizabethtown, Kentucky, Victor and Cathy Moseley decided to pursue the American dream and start their own business. Among the many tasks to start a company, the Moseley's had to find a name for their adult gift and lingerie shop. The couple came up with the name Victor's Secret and went on to open their store.
Victor's Secret did not remain secret when the legal department of Victoria's Secret sent a letter to the Moseley's claiming trademark infringement. In haste, the couple changed the name to Victor's Little Secret, but the change was not enough for Victoria's Secret who then filed a lawsuit.
No matter the size of your business, you run the risk of trademark infringement each time you name a product, service, and your company. With an ever-growing number of trade names, take the necessary steps to reduce your risk of trademark infringement.
What is a Trademark?
According to U.S. Patent and Trademark Office (USPTO), "A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others."
3 Steps to Trademark Protection
1. Trademark Search: Naming a new business or launching a new product can be an exciting endeavor. Avoid the trap of "falling in love" with your company or product name until you have done a trademark search.
Begin your trademark research at the federal database Trademark Electronic Search System (Tess) of the U.S. Patent and Trademark Office.
Use the free search engines such as Google and AlltheWeb.com. Simply put your exact product or company name in quotation marks, ("my company") and perform an Internet search. You can quickly find another company using your proposed name. Try looking in many search engines because each only covers a small portion of the web.
Perform a common law trademark search. This involves a comprehensive search of databases, directories and other sources.
Hire a trademark search service. Using a professional trademark search company may put you back a few hundred dollars, however, they can cover searches of states and international areas. These companies specialize and often can be much more thorough in their research.
2. Trademark Registration: It's not a requirement for your small business to actually register a trade name. Using a trade name provides some protection alone. Trademark attorney, Martin Schwimmer says, "Filing a trademark application is the most important step towards obtaining trademark protection for one's own trademark."
When would a tradename not be infringement? Schwimmer advises,"Use of an identical or confusingly similar version of a registered mark for identical or related goods or services would constitute infringement."
Registering a trademark with the U.S. Patent and Trademark Office will show all those who may tempt to use your trademark, that you are serious and willing to take the steps to protect your name.
3. Trademark Maintenance: After registering your name, it is vital to upkeep the value of your company or product name. This involves using your trade name throughout your company on websites, brochures, and invoices.
Don't forget to use the "®" symbol after you have approved registration from the federal trademark office. If you haven't registered your trademark, you can use the "tm" trademark symbol.
To provide complete trademark infringement protection, consult with a trademark attorney. Legal council should be part of your business operations. The risk avoidance will overcome the costs.
Not taking the necessary precautions to guard your small business against trademark infringement is like driving without insurance...an accident may not happen to you; if it does, the results are catastrophic.