Many entrepreneurs, especially smaller ones, are violators of trademark infringement. Instead of investing the money in having a proper trademark search done, they rely on their intuition to just assume it will be okay to call their yoga pants “Nikke,” assuming that if they just add an extra letter, Nike Corporation will not care.
And you see trademark infringement all the time on Amazon, in products that imitate Disney, Marvel, and dozens of other super-popular brand names.
Each year, the customs department destroys millions of dollars worth of Fake or copycat brand merchandise imitating Rolex, Gucci, and Louis Vuitton.
It won’t hurt anybody, these copycat marketers think.
Wrong. If they are caught, or even make a nominal attempt at copying trademarked goods, not only is the customs department liable to seize their goods, but the owners of trademarks can sue for big-time damages in court for violating their trademark.
What to Do
Before you spend thousands of dollars on inventory, have an attorney do a trademark search to see if a name is trademarked.
Although there are common law trademarks, ie Joe’s T-Rex diner, that are used without ever being officially applied for by a federal trademark, and also state trademarks, they are difficult to enforce in court. As a result, if you want to open up another restaurant called Joe’s T-Rex diner, Joe will generally have to just grit his teeth and bear it.
Not so, with a Federal Trademark.
Doing a Trademark Search Yourself
Trademarks are issued by The United States Patent and Trademark Office, and the USPTO issues trademarks to prevent business confusion.
Entrepreneurs want to make sure that a product trademark has already been applied for or received, and that another product description is not similar to your product description, and is not used in a related service and is live.
Do consult an attorney or visit Your Trademark Attorney-trademark search tips on nonlive trademarks, because they may still be using it, it just appears dead due to an administrative lapse in completing renewal paperwork.
In any case, the USPTO has a live database that you can use.
The problem with doing it yourself is that the database can be complicated, and you must understand exactly what the search is actually showing. Non-attorneys can do a general word search to rule out obvious terms that have been trademarked but beyond that, particularly when it comes to word and design mark trademarks, it becomes more difficult.
Not Everything Can Be Trademarked
It is important to know that if a name is not trademarked in the U.S. trademark database, that does not mean you can always obtain a trademark on it.
Try to trademark a commonly used word such as “politician” or trademark a product using the name “fingernail” and see how far you get.
The idea behind trademarks is to provide special protection for special and unique branded items. Thus Kleenex is trademarked, whereas tissues cannot be trademarked.
Conclusion
Before you spend a lot of money on inventory, letterheads, a website, and more, it is vitally important to know whether your product is trademarked.
After all, just because you can obtain a website with a name you like, doesn’t mean it is not trademarked and able to cause you endless problems.
At the least, you can expect to pay a few thousand dollars for the trademark owner to license the use of the name to you. At worst, you could be liable for millions of dollars in damages in court.
Consult a trademark attorney before proceeding.
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