Regardless of the size of your business, a trademark is an important asset to any business. Whether or not you are a fortune 500 company or just a home business, your trademark is the public face of your business to your customers. That is why it is vital for business owners to conduct a trademark search, in order to determine whether or not another business is using a trademark similar or even identical to theirs. This is especially true now that the internet has allowed business of all sizes to advertise and compete throughout the world.
A trademark search ensures that your business is not violating another person’s trademark rights, and thus avoiding unnecessary lawsuits. If a suit claiming infringement on a trademark is filed against you, you will be force to stop using the mark in question and may even be force to pay damages. This may depend on how long you may have been using the trademark and the manner the trademark was used. However, in any trademark infringement case, the plaintiff must prove that he or she owns a valid mark and the defendant’s use of a similar or exact mark will likely create confusion among consumers. To determine if a person is already claiming rights over a trademark you are using, you can conduct a trademark search by using the Trademark Office online database. Most individuals prefer to hire a trademark attorney to conduct their trademark search for them. However, an attorney is not necessary. Any individual can conduct an online trademark search for free. Individuals can also search at the Trademark Public Search Library located at Alexandria, Virginia. The Trademark Public Search Library is also available to the public for free.
After a trademark search is done and there were no claims made on your mark, then you have the option to make a request to the Trademark Office to make you the exclusive legal owner of your mark. If the Trademark Office grants your request, then you can exclude other people from using your mark without permission. However, it is important to note the difference between a trademark and a trade name. A trade name is the name a company does business under as and is use to identify the business. Trademark on the other hand is anything that associates a product or service with the trade name or business. In some cases, a trade name can become a trademark depending on how the business is operated. An example of this would be the Coca Cola Company, which has trademarked the Coca Cola name. In trademark infringement cases, courts will use several factors to determine if the use of the mark in question will likely create confusion among consumers.
These factors, though each one is not determinative in itself, includes but is not limited to:
Whether or not the mark is being used on a service or product that both parties provide and hence making them competitors.
Whether or not the good or services that are using the mark in question are being marketed in the same stores.
Whether or not the accused infringer purposely used the mark to trick consumers in order to profit off of the reputation of the plaintiff.