• Trademark Issues: A Cheat Sheet for Entrepreneurs
  • November 30, 2015 | Author: James H. Gulseth
  • Law Firm: JGPC Business & Corporate Law - Pleasanton Office
  • Understanding trademark issues isn’t easy. Today’s post will give you a quick overview of some issues that entrepreneurs and established businesses face when establishing and keeping trademarked status.

    When entrepreneurs are selecting a name for their company they tend to think that if they form a corporation or and LLC with a name or they have a domain name that they have the right to use that name in their business. That’s not necessarily the case.

    The fact that you have a corporation named “XYZ Corporation” does NOT give you the right to do business under that name.

    Your corporate name may serve as evidence that you’ve been doing business under that name, but it doesn’t mean that someone couldn’t come in and shut you down due to improper use of their trademarked name.

    So before you start spending a lot of money on marketing or development of your product you need to be very concerned about what trademarks and tradenames are available to you and which are taken by someone else.

    What are the big trademark issues to look out for?

    Understand that you can develop common law trademark rights by using a name but you could also develop rights by registering a name on the state or federal level.

    So once you’ve registered your trademark (or tradename) with the patent and trademark office then it is presumed that you have the right to use that name anywhere in the USA. The presumption is that no one else can use that name.

    However if someone else had been using that name before in a local business, they still are going to have the right to use that name within the scope or their historical business.

    If you’re a local contractor and you have a name “ABC contracting” then as long as there is nobody in your immediate area using that name then you’re okay. The fact that there are 10 other people in other parts of the country using the same name is irrelevant because you’re only marketing in one area.

    But the minute you begin to market using the Internet you’re doing business everywhere. The fact that you have the domain name “ABCcontractor.com” doesn’t mean you can use the name. If someone else has registered that name with the patent and trademark office or if someone has common law rights to use that name in a given area, you could be prohibited from using that name.

    How do you know if a Trademark is taken?

    How do you find out if a trademark or tradename is available?

    You can go online and Google it of course and get some idea of what names are available. You can do a search at the patent and trademark office on a federal basis and get some idea. Each state basically has its own separate trademark/trade name system.

    How to do a Trademark Search

    The only way you can really determine for sure whether a name is available is to have a search done by an organization that performs trademark and tradename searches professionally.

    The fee may be somewhere between $200 and $400 dollars per category. It could be a name, a logo, a symbol, a catchphrase, whatever it is…they will run it through a database and you will receive a thick report in return that identifies anyone who is using that name or anything similar to it and any way shape or form within the geographic area of your search.

    Once you have completed that search you will be able to judge whether you will have a problem using a name, image, logo or catchphrase.


    This article was originally published on JGPC.com.