Fake Brands (Weird News No. 4) by “Caveman Chuck” Coker from Flickr (Creative Commons License)

I asked my friends who work in marketing, who create campaigns and brands for a living, whether they check the U.S. Patent and Trademark Office (USPTO) database before finalizing a project for a client. I was surprised when all of them said, “No.”  To me, this would be an obvious step in the brainstorming or idea development process.

Let’s go over a little bit about trademarks. A trademark is the name, slogan, logo, etc. you put on your company or products to differentiate them from your competition. A trademark has two components – the mark itself and your product or service. That’s why it’s permissible for two unrelated companies to have similar names – like Delta Faucets and Delta Airlines. You can’t put a trademark on your company or product that is so similar to your competition that consumers are going to be confused about what they’re buying.

If you create a brand but don’t register it with the USPTO, you only get common law protection for it which extends only as far as your geographic market. You also risk being in the Burger King situation where you could be limited in your ability to expand if someone registers your trademark after you’ve started using it.

When a company registers their trademark, they get the exclusive right to use their mark on their category of goods and services everywhere in the United States. No one can enter the marketplace with a confusingly similar name on similar products or services, even if they do it in a geographic area where the trademark owner isn’t doing business. They can send you a letter demanding that you rebrand or sue you for infringement. This happened to a friend of mine who had a dog training business that had a similar name to a dog trainer who lived across the country. Since the other guy registered his trademark for dog training, he had the authority to make my friend change her business’ name.

The USPTO trademark database isn’t that hard to use if you’re only looking up words. When you are researching potential names and slogans, make sure you look up various spellings of the word(s) and watch out for the word you want in other languages. It’s a good idea to verify with a trademark that the name or slogan you want as your trademark is available. You don’t want to invest a lot of time, money, and energy in creating a brand that you can’t have. I’ve worked with too many companies who have had to rebrand their company or a product because they got a cease and desist letter from someone who had registered the name.

I also made a video about the importance of checking the USPTO database when selecting a brand.

I’m also a huge advocate of registering the trademark in your blog because if someone else takes your name, it can essentially shut down your site. If you want to chat more about trademarks, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
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