It is not as simple as just looking for the exact name at the Trademark Office of your country to see is a name is taken. When running a trademark search, here are the four main things attorney take into account:
– Similar names.
– Spelling variations of the name.
– Phonetic similarities.
– Similarity in meaning.
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– Decide what type of business you are going to have: Depending on your country you have different alternatives, but this point will be key to decide from the very beginning. By doing so, you know the exact paper work you need to file.
– Decide your business name and protect it: This will be how people are going to find you, how you will stand in the field. So, after this decision is made, call your attorney and do the filing at the Trademark Office.
– Website and social media: In the past it used to be just a website and you were good to start business. Now you need to set up accounts for the social media platforms of interest. So, it is important to do the appropriate search from the very beginning for everything matches and makes sense.
– Have contracts: Depending of your line of work you will need different contracts. This is when your attorney plays an important part as well to guide you through your exact needs.
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Registering your trademark under the right class/classes is the most important step in the process and it is a key component to your trademark protection strategy.
The Nice Classification is an international classification of goods and services applied for the registration of marks. It provides 45 classes in which you can file an application. Classes 1 to 34 are relating to products, whereas classes 35 to 45 to services.
The number of classes will depend on your interests and budget. Strategically, some large companies file the trademark in many classes to prevent literally everyone from filing the same name under a different category. However, this is not always a success, since they may need to show proof of use and if they cannot do it as a specific class is not their interest, they risk the loss of the one class.
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A knockout search, also referred to as a “quick and dirty search”, ONLY looks for the identical and semi-identical trademark. It will show both live and dead applications and registrations. This type of search can be done by you at the Trademark’s Office database or by an attorney, but it does not require a lot of time and it does not provide real advice. If the intended name exists for your products/services of interest, you cannot file it.
A clearance search is done by an attorney with specific tools and software. All applications and registrations are analyzed from different perspectives. It enables comparison phonetic, graphic and conceptually and it will provide advice from an experienced attorney and the possibilities of success and likelihood of confusion with others.
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When starting a business, you want it to be unique so your clients know for sure it is you behind it. In order to do that you should be sure nobody else is using that trademark. But, are Google searches the best alternative?
Nowadays we rely on Google for almost everything we need to do on our lives. But a Google search is not the same as a trademark search. You can google a name, but it will not say much, just a few pages using it, but it does not mean you will not be able to register yours if said identical trademark is not registered.
The proper trademark search must be done at the Trademark Office of interest as it analyses all trademarks filed before it and the possibility of conflict. It implies the whole database. But it does not only mean identical names. As attorneys, we analyze your trademark of interest from different perspectives: Can it be registered? Is it already registered? Can any of the prior antecedents represent an obstacle for the intended mark?
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Most people start a business because this was their dream. They have a name, a project, products and/or services to offer. Building a brand is exciting.
Some may consider a trademark search to be of no value at all, or even a waste of money, but here are the main reasons to perform one before filing:
– If an identical or similar trademark is already being used, you might be forced to discontinue yours. So, all the money and time invested, not to mention the clients you have within time will be lost.
– You may face liability. Your application is public, so anyone with prior rights may initiate legal actions so you cease the use of your trademark. Fees involving a lawsuit will be much more than performing the search.
– If an identical or similar trademark already exists, you will need to rebrand. And, again, that is more money and time you will need to invest and, most important, get your clients to trust you again after all this.
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Across Intellectual Property Offices worldwide, there are different laws that will allow that you you’re your application without an attorney. However, if any issue arises, you will definitely need one, why? Keep reading!
Attorneys educate clients: You are paying for a service, and therefore your attorney will explain anything you need and provide the best advice.
Trademark scams: If you file the trademark yourself, and even if you do it by an attorney it will not be a surprise that you may get a notification with an invoice letting you know “updates” from your application. These are, of course, are a fraud. When you have your attorney, you MUST ONLY listen to him/her. Nothing you receive by other office is likely to be truth, and NEVER EVER pay any invoice that you did not agree in advance with your firm.
Time savings: Attorneys know the work so you do not need to waste any time performing searches you cannot know that will be properly done or listening to your friend or neighbor who all of a sudden knows about Intellectual Property. Not to mention those DIY on YouTube.
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You have done anything right. You have done your search, filing and finally have your registration certificate in your hands for the next ten years (in most countries). Now, what do you do to protect your trademark? Here are a few tips:
– Careful use of your trademark: Be sure that your use is consistent. Use it in the exact way it was registered. Make sure that you use your trademark with the products and/or services that you listed as your product descriptions in your trademark application.
– Monitor your trademark: By doing this, you will prevent third parties from applying to use similar trademarks, which would weaken the strength of your brand.
– Maintain your trademark: Keep your registration up to date with the registry. Make sure you file the renewal.
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Whenever filing a trademark application, you should definitely consider performing a trademark search before. Why? Because by analyzing ALL trademarks filed before the Office (yes, literally ALL), you can find out if you may have any issues with the intended application in relation to:
– Relatedness of goods or services (and similarity with the trademark overall).
– Similarity of trademarks.
– Similarity in appearance.
– Similarity in sound.
– Similarity in meaning.
– Design marks (similarity of their visual presentation).
– Likely to deceive.
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Intellectual Property is a beautiful field, and since it covers ALL your ideas, it must be properly protected. Here are a few tips on what to take into account when choosing your Intellectual Property attorney:
– You need to find someone who is a fit for you. You will get the vibe. Your heart will know when the person is the right one to work with you.
– The attorney needs to understand your industry, whatever that is, so they can tell you what to protect and how so you will know your business is solid.
– Your attorney will become an invaluable business partner for you, your to go person when you have any questions. You need to know you can reach them and they will be there for you to reply any questions you have, not just sending you to a website and to download a template.
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