Why conduct a Trademark Clearance Search
The latest news about the TikToker who used Gorilla Glue instead of Gorilla Snot Hair Gel on her hair has raised some questions about brand-building and Trademarks. To provide some answers, we look at why a trademark clearance search conducted by an experienced trademark attorney is one of the most essential components of brand-building and protection.
A trademark clearance search is a comprehensive search of the Trademark Electronic Search System (TESS) database containing all pre-existing live, dead, and abandoned trademarks of businesses’ names, logos, and associated marks to determine the registrability of a potential new mark and the risk of use. While important to the United States Patent and Trademark Office (USPTO), a trademark clearance search will help guide your brand decision making so that your customers will not be confused and accidentally purchase the wrong item. Or worse cause you to lose customers to a pre-existing trademark.
A trademark clearance search accomplishes three important goals:
- Points out any “red flags” of pre-existing rights of another company;
- Prevents having to rebrand after creating goodwill with customers; and
- Serves as key evidence in a Trademark infringement lawsuit.
While we take no stance as to whether TikToker could have reasonably confused the two products, it serves as a great example of why businesses should protect themselves against similar situations.
Conducting a trademark search is the first significant step in brand-building, receiving a trademark registration, and protecting your brand, although entrepreneurs seeking Trademark certification often underestimate or skip this step. Before deciding to file for trademark registration, an entrepreneur should consider seeking counsel to conduct a trademark clearance search. As entrepreneurs, one of our main focal points is marketing and building goodwill to attract more customers. Brand recognition is the largest aspect that keeps our customers coming back. But before using that tremendous new logo, convincing company name, and that catchy slogan, an entrepreneur should consider if another company is already created and built a brand with a similar name and product. A preliminary trademark clearance search is an entrepreneur’s greatest asset in brand building. BUT WHY? Well, we will explain why this is important below.
Having a great logo or brand name does not mean a company is automatically granted trademark rights that can be used without facing legal obstacles. The same goes for having a domain name or social media handle. Those do not guarantee that your brand is capable of being used or registered on a federal level. There could be another company lurking to sue for trademark infringement or steal customers.
Take the following as an example:
Company A creates a new brand name for their business. All the marketing and branding turns into a successful new product and Company A is doing great.
(Company A) Creates New Product
Company A decides it is time to apply for a Trademark with the USPTO. However, Company A is denied registration because there is a preexisting registered Trademark. The existing trademark is identical and similar under the same brand name owned by Company B.
(Company B) Already Registered New Product®
Company A continues to use its brand name anyway because it has brought them so many new customers. Company B sues Company A for trademark infringement on their registered mark.
Company A is forced to stop using the awesome brand name. In addition to forfeiting the awesome brand name, Company A thought they created first, they start to lose customers to Company B because customers loved the awesome brand name.
A preliminary trademark search conducted by Company A would have shown that a registered trademark existed and was owned by Company B. All of the time and money wasted could have been avoided if there was a preliminary trademark search in the brand-building process for Company A.
While trademark clearance searching can lead to difficult decisions in the brand development stage of launching a new business, it also allows a business to detect and avoid significant trademark infringement problems before they arise.
Conducting a trademark clearance search is a vital part of building your brand. By hiring an experienced attorney to conduct the trademark clearance search, entrepreneurs can determine the risk of brand-building and discover any existing trademarks that may cause potential legal conflicts.
An experienced trademark attorney can assist a business to navigate those challenges by providing advice, evaluating risk, and conducting a proper clearance search. If you are starting the brand-building process or are ready to register your Trademark, we can help.
Schedule a consultation with Nowlin Scott Law Firm today to request a case evaluation.
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