Unit of 1 - Protecting Your Business Through Trademark Clearance Searches

By Arnold Winter, Esq.
Trademarks are letters, words, designs, logos, slogans, and similar devices that you use to create name recognition in your market for your products or services. As such, trademarks are valuable business assets, and protecting your marks under trademark law increases the value of your business. At the same time, it's equally important that your marks don't conflict with anyone else's legal rights.

Trademark law does not expressly require clearance searches. Nevertheless, the possible consequences of infringing someone else's trademark rights, hence, the potential cost to your business of foregoing proper trademark clearance searches, may be catastrophic:

- Instead of focusing on your business, you end up having the considerable expense and distraction of dealing with the legal action brought by the other trademark owner.

- If you're forced to stop using your mark, you?ve wasted all the time, money, and other business resources you've invested in developing and promoting the mark and establishing your brand. Think about all the marketing you may have done, all the promotional and packaging materials you've created, and all the advertising you may have bought.

- Giving up your mark means that you loose all the benefits of name recognition and goodwill associated with your goods or services through the mark. Just imagine having to stop using the marks through which your clients and customers have come to recognize you and your products or services and having to start your branding efforts from scratch!

- If your mark is also the address of your business web site, you may have to give up that web address. Thus, your clients, customers, or prospects will no longer find you at that address, and you'll have to inform everyone of the change if you start using a new web address. Related to that, you'll also have to change all the e-mail addresses (and business cards and other materials that display them) that you and your employees have been using if those e-mail addresses are based on the web site address that you now have to give up.

- Finally, you may not only owe the other trademark owner damages for trademark infringement (which could be trebled in certain circumstances) but perhaps also have to pay the other owner's attorney fees and other costs of bringing the action against you. To minimize these risks, proper trademark clearance searches should be done as early as possible, preferably as soon as you start thinking about a mark that you want to use to market your products or services. The potential cost of these risks to your business far outweigh the relatively minor expense of a proper trademark clearance search.

Remember: Ignorance of someone else?s existing trademark rights is no defense. And once you're in business, you'll be attracting not only the attention of people you want to reach but also of competitors who might feel that you're violating their trademark rights.

By the way, just because a certain name was available in your state as a corporate or fictitious name, that has nothing to do with whether or not it is also available as a trademark. So make sure that your lawyer is also looking at trademark issues in helping you select a name for your business.

Providing entrepreneurial legal services to business clients, Arnold Winter practices law in Media, PA, as a partner in Lipton, Weinberger & Husick. For more information, please call (610) 891-6910 or visit www.LawWinter.com.