Trademarks should be an important part of every company’s business plan. The basic concept behind a trademark is that it lets a consumer connect a word or phrase with a particular company. If the consumer has had a good experience, they’ll remember the name—hopefully—and buy the product, or something else from that company, again. A trademark on the word or phrase gives the company some legal tools to keep others from taking advantage of the work that’s been put into building all that recognition and good will. If you’re about to put time and effort into launching a brand without knowing whether or not someone else already has a trademark on it or something like it, you’d do well to avoid a lot of disappointment by taking the time to do a little homework.
Start by conducting a simple internet search, which will give you much useful information but may not necessarily tell you anything about trademark status. For that you should pay a visit to the U.S. Patent and Trademark Office website (www.uspto.gov), where you’ll find an easy-to-use search tool; it appears on the landing page with a large magnifying glass next to it.
After a couple of clicks, you’ll find yourself in the Trademark Electronic Search System (TESS) ready to do a basic word mark search. Just type in the name or phrase you’re researching and see what comes up. If you’re searching a phrase, do one search where the result must contain all the words (X and Y) and one that is a little looser (X or Y). Your list of results, if there are any, will tell you if there’s an active trademark (“live” as opposed to “dead”). And if you click on a result, you’ll find information about who owns the trademark and, more important, what goods or services it’s associated with.
The standard by which trademark infringement is judged is whether or not a consumer is likely to be confused as to the source of the product or service in question. Proving confusion, as you might imagine, is the stuff that much litigation is made of—but with a little common sense, you can make a reasonable guess as to whether you should go in another direction.
The type of good or service in question is an important factor. If I want to sell cider under the brand name “Angry Tree,” for example, Angry Orchard is certainly going to have something to say about that. But what if I want to sell chiropractic services: Who’s going to confuse cider with spinal adjustment? Still, it’s probably better to be conservative in your assessment.
The bottom line is that there are tools that anyone can—and should—use before committing their business’ resources to a path that can lead to a brick wall. Getting your first shipment of company-branded swag and a cease-and-desist letter at the same time may not put you out of business, but neither will it make your day.