“Remember that prior to filing an application to protect a product name, logo or design, a search should be undertaken to determine if a mark or design similar to the one that you are seeking to protect has already been applied for or registered.” Also, because the owner of a federally registered trademark or service mark on the Principal Register has a prima facie exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate throughout the United States and the prior user of an unregistered mark has a senior right over a more junior user to use a mark on the same or closely related goods in at least the same geographical area, again, I recommend that a business, before it adopts a name for goods or services that it intends to offer, conduct a prior search to determine that that mark is available for it to use. My fees to conduct such a search are shown above.
In today’s recessionary economy, many out-of-work former employees are trying their hand at starting new businesses. To some degree, their success in that new endeavor may be dependent at how catchy a name or logo they adopt to identify that business.
A word to the wise; before you put that name on your signs, stationary or web site, do a search and make sure that someone else doesn’t own a federal trademark registration for the same mark or logo that you are adopting. The cost of not doing one, of having to order new signs, putting together a new web site or printing all new marketing materials as well as telling the world that what they used to call your great idea is now called something else, is likely to be more expensive.
For example, go to www.apple.com and you will find a full page announcement for its iPad tablet computer. Then go to the Trademark Electronic Search System on the United States Patent and Trademark Office’s web site and you will see a federal trademark registration for the IPAD for bras, lingerie, panties and pads for use in bras, for IPAD for “Keypads For Entry Of Personal Identification Numbers In E-Commerce,” and an application by Fujitsu for IPAD for a “Hand-Held Computing Device For Wireless Networking In A Retail Environment.” In other words, Steve Jobs picked a name for what he hopes will be a revolutionary product but it is a name that others in the computer industry and the lingerie industry had already selected. But as the New York Times reported on January 29, 2010 describing a previous trademark negotiation ultimately won by Steve Jobs for the iPhone trademark, “I feel sorry for the poor guy at Fujitsu (or his lawyer) who is going to be negotiating with Steve directly.” For its fiscal 2010 first quarter ended December 26, 2009 Apple posted revenue of $15.68 billion and a net quarterly profit of $3.38 billion.
I doubt if your start-up can claim those numbers, so don’t count on paying off anybody with senior trademark rights. Do a search first and use the money you save by selecting an available mark to emerge from your garage as the next Apple.
