A brand’s name is often its first impression. As such, ensuring it’s unique, memorable, and legally clear is of utmost importance. A trademark is a recognizable sign, design, or expression that distinguishes products or services of a particular source from those of others.
This can be in the form of logos, names, symbols, and even sounds. But the main issue is when someone else is already using the same name.
How to Check for Trademark Availability?
Before you get attached to a brand name or invest in branding materials, it’s essential to ensure your desired name isn’t already trademarked. With the plethora of businesses and products out there, this is a crucial step in brand development.
Online Trademark Databases
Several online platforms and databases allow you to search for registered trademarks. In the US, the most reputable resource is the United States Patent and Trademark Office (USPTO) database. Here’s a simple way to navigate it:
- Visit the USPTO’s Trademark Electronic Search System (TESS).
- Use various keyword combinations and spellings to ensure a thorough search.
- Check for live trademarks and also consider dead ones, as re-applications can arise.
Hire a Professional
While online searches are accessible and often free, they might not catch everything. For thoroughness and peace of mind, consider hiring a trademark attorney or a search firm. They have the expertise to identify potential conflicts and can provide advice on the likeliness of trademark approval.
Risks of Ignoring
Skipping or inadequately performing a trademark search can have dire consequences. Remember, it’s not just about whether a name is taken, but whether it can be confused with another trademarked name.
If you use a name that’s already trademarked, you risk a potential lawsuit. Legal battles can be costly, both financially and in terms of brand reputation. Even if you win the case, the time and resources spent could have been directed towards productive endeavors.
Imagine investing in branding materials, marketing campaigns, and product packaging, only to find out you’ve infringed on a trademark. The costs and logistics of rebranding can be overwhelming, not to mention the potential loss of customer trust and loyalty.
Consider the Global Market
While you might have checked the trademark status of a name in your country, the globalized nature of business today necessitates an international perspective.
International Trademark Searches
If you’re considering expanding your business or selling products internationally, conducting an international trademark search is paramount. Several databases, like the World Intellectual Property Organization’s (WIPO) Global Brand Database, allow for such searches.
By utilizing these tools, you can ascertain if your chosen brand name is available in your target international markets.
Madrid System for International Registration
If your brand name is clear and you aim for international business, consider the Madrid System. Managed by WIPO, it allows businesses to register trademarks in multiple countries with a single application. This unified system can save time and reduce costs when compared to registering in each country individually.
It’s Not Just About the Name
Trademark rights aren’t just about who registers first; there are intricacies to understand to navigate the process seamlessly.
Common Law Rights
Even if a name isn’t officially registered as a trademark, someone might still have rights to it based on usage. Known as common law rights, this means if a company has been using a name for its products or services without registering it, they could still have legal grounds for a case if you try to use it.
Try To Be Different
For a trademark to be registered, it often needs to be distinctive. Generic or purely descriptive names might not get approval. For instance, you’d likely face challenges trying to trademark a name like “Fast Car Wash” for a car washing service.
The more unique and distinctive your chosen name is, the better your chances of getting it trademarked.
After you’ve done your due diligence and the name seems available. There are other steps in the process.
Once you’ve ensured the name’s availability, consider applying for a trademark. The application process varies by country, but generally, you’d need to:
- Fill out an application detailing the name/logo you want to trademark.
- Specify the goods/services it will represent.
- Pay the required fee.
- Await examination and potential approval by the respective trademark office.
Monitoring and Protection
After securing your trademark, ongoing monitoring is crucial. There are services, both online and offline, that alert you when similar trademarks are filed. This proactive approach helps in taking timely action against potential infringements.
Trademarks come in various forms, each offering a different level of protection and conveying a distinct message to the public.
Service Marks vs. Trademarks
Many people use the term “trademark” generically, but there’s a distinction to be made. While trademarks protect brand names and logos used on goods and products, service marks are for brands that provide services.
For example, a brand that sells shoes would use a trademark, but a consulting firm would use a service mark.
Collective marks are used to represent membership in a particular organization or association. This could be a union, cooperative, or any other group. The mark signifies that the person using the service or product is a member of that collective group.
These are unique in that they signify that the product or service meets certain standards set by the certifying organization. A classic example is the “Energy Star” certification, indicating energy-efficient products.
Duration and Renewal
Unlike patents or copyrights, which have a defined lifespan, trademarks can technically last indefinitely.
Maintenance of Rights
For a trademark to remain valid, it must be actively used in commerce and defended against infringement. If a brand fails to use its trademark for an extended period without reason, it could lose its rights.
While trademarks can last indefinitely, they aren’t maintenance-free. In most jurisdictions, trademark owners must renew their registration periodically. This often involves filing renewal documentation and paying associated fees.
What About the Infringement?
Trademark infringement is a serious matter, and understanding its implications is crucial for businesses of all sizes.
Direct vs. Indirect Infringement
Direct infringement is straightforward – it’s when a brand name or logo closely mimics a trademarked one, leading to confusion. Indirect infringement is more nuanced. It can be when a brand indirectly causes confusion or dilutes the brand value of a trademarked entity, even if they aren’t competitors.
The “Likelihood of Confusion” Standard
Courts often use the “likelihood of confusion” standard to determine infringement. This means even if two marks aren’t identical, if an average consumer would likely be confused between the two, it could be grounds for infringement.
How to Choose the Right Name?
A well-chosen trademark can set your brand apart in a crowded marketplace and provide strong legal protection. After you are sure that a set of names you wanted to choose is available, the last step is to make the final decision.
Avoid Generic Terms
- Generic terms or descriptions related directly to your product or service rarely qualify for trademark protection.
- For instance, naming a bakery “Delicious Breads” would be too generic.
- Coin a term or merge words to create something novel.
- Think of brand names like “Kodak” or “Google” which had no prior meaning but are now unforgettable.
Ensure It’s Memorable
Your trademark should be easy to recall for your target audience. A memorable trademark can give you an edge in marketing and branding.
Keep it Short and Simple
- Brevity often aids recall. Short names can also be more versatile for branding materials and advertising.
Avoid Complex Spellings
- If customers struggle to spell or pronounce your brand name, they might not remember it or could find a competitor instead.
Research Cultural Implications
- A word that sounds perfect in English might have a negative or humorous connotation in another language.
Reflect Your Brand’s Personality
- If your brand is about elegance and luxury, choose a sophisticated name. For a playful, youth-centric brand, something quirky might work better.
What Happens if Two Brands Have the Same Name?
If two brands have the same name and operate in the same or similar industries, there’s a risk of trademark infringement. The first to use or register the name typically has superior rights.
The infringed party can take legal action, which might result in the latter brand having to change its name and pay damages. However, if the brands operate in entirely different industries where confusion is unlikely, they might coexist without issues.
What Can’t Be Trademarked?
Several things can’t be trademarked, including:
- Generic terms or phrases directly describing a product or service.
- Names that are descriptive and lack distinctiveness without an established secondary meaning.
- Government symbols or insignia.
- Immoral, deceptive, or scandalous names.
- Names that could cause confusion with existing trademarks.
How Do Big Brands Choose Their Name?
Big brands often employ a combination of strategies when choosing their name:
- Research and Brainstorming: Extensive sessions to come up with unique and catchy names.
- Focus Groups: Testing potential names on target audiences to gauge perceptions and recall.
- Trademark Searches: Ensuring legal availability of the name.
- Cultural Checks: Verifying that the name doesn’t have negative connotations in other languages or cultures.
- Alignment with Brand Identity: Ensuring the name aligns with the brand’s ethos, values, and market positioning.
What Is the Biggest Brand Name in The World?
Apple was often cited as the world’s most valuable brand in terms of brand value. However, brand rankings can shift yearly based on various factors, including financial performance, brand strength, and consumer perception.
While choosing the right trademark requires a mix of creativity and strategy, it’s an investment that can pay immense dividends in the long run. By ensuring it’s unique, memorable, legally secure, and resonant with your brand’s ethos, you lay the foundation for a strong brand identity and enduring market presence.