Before filing a trademark application, it is a good idea to search trade names already registered with the Patent and Trademark Office, as well as domain names and business names already being used to make sure the trade name you choose is not confusingly similar to someone else’s.
The reason for the search is to determine whether another person business is already using a trademark that’s identical or similar to the one you want to use. In this way, you ensure that you will not violate someone else’s trademark rights.
The consequences of failing to conduct a reasonably thorough trademark search may be severe, depending on how widely you intend to use the trademark and how much it would cost you to change the mark if a conflict later develops.
First, if the trademark you want to use has been federally registered by some other entity, you will be prevented from using the trademark in any context where customers might become confused as to the source of your products or services. Further, a court of law will presume that you knew about the trademark registration – even if you did not. This means that, if you do use the trademark in violation of another’s rights, you will be considered a “willful infringer”. It is quite possible that a willful infringer can be liable for large damages and payment of the registered owner’s attorney fees. The infringer can also be forced to stop using the trademark. This means that all of the goodwill already developed about the mark will be lost along with the cost of replacing any materials with the mark.
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Howard M. Cohn & Associates has extensive and varied experience in all aspects of Intellectual Property law, with a unique specialty in patent and trademark preparation and prosecution. Schedule an appointment or call us at 800-613-1067.