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If you have developed a new product or service, the next step is to develop a memorable brand, or trademark and slogan. Before you begin displaying these on product packages or your website, take a few minutes to be sure each is available for use. If you don’t, you may run into an expensive problem in the future.
I’m talking about trademarks and the risk of infringing on someone else’s legal rights.
It takes only a few minutes to check whether the brand for your new product is already someone else’s trademark or confusingly similar to a trademark in use. Start by quickly searching Google, Bing, DuckDuckGo and both of the major mobile app stores — Apple App Store and Google Play.
Don’t stop there. To ensure the brand name or slogan is available, run a free search on the U.S. Patent and Trademark Office website.
You don’t have to register your brand or trademark to start using it. In fact, the USPTO won’t register your trademark unless and until you have products in the marketplace that bear that trademark. Trademark rights stem from your use of the trademark, not from registration.
This is good practical advice for any entrepreneur. But let me state upfront, for legal advice, you’ll want to contact a good attorney specializing in intellectual property (IP).
Related: Startups Must Protect Their Trademark. Here’s How and Why
The value of registered trademarks
You may be surprised to learn that you can register taglines and slogans as trademarks to protect your intellectual property. A registered trademark makes it easier to brand products and services and build up goodwill and recognition in the marketplace. Unique trademarks also reduce confusion.
Business owners feel so strongly about protecting their IP that they submitted over 181,000 trademark applications in Q1 2024. Securing a registration for your trademark from the federal government requires paying a filing fee and either using an online service or hiring specialty attorneys to handle the paperwork — I recommend the latter. In addition, trademark owners must renew their trademark registrations every 10 years.
Trademark violation
As a small business owner, you may decide to start using a slogan you like without checking to see if it’s available. Perhaps you think it’ll be fine if you only serve a local market and the owner of the trademark operates somewhere else. But if the name or phrase has already been registered for use on or in connection with a product or service that’s related to yours, you may be guilty of trademark infringement.
You might believe it’s clever to mimic a famous brand or registered slogan by making a small tweak. Unfortunately, courts often treat that usage as an infringement if the relevant public assumes, mistakenly, that your product or service is endorsed or sponsored by the company holding the registration or that you and your business are somehow affiliated with that business.
You may wonder whether the threat of an infringement action matters. It does. If you are caught using a slogan that is the subject of or confusingly similar to someone else’s registered trademark, don’t be lulled into thinking you can ask for forgiveness instead of permission. Most business owners will be vigilant in protecting their investments. After all, they have spent years working to ensure that consumers or other target audiences associate the slogan with their company.
Related: All You Need to Know About Using Trademarks for Your Business
Trademark holders are required to protect them
Part of the responsibility of owning a trademark is protecting its use. If you don’t, you lose your ability to enforce it when a direct competitor tries to steal it from you or uses a confusingly similar trademark. So, don’t blame the trademark holders for sending you an email or a cease-and-desist notice. It’s their obligation — and it’s your misstep. The worst thing you can do is ignore this kind of communication and hope it goes away.
I have invested significantly in trademarks as a way to brand my business. My registered slogans appear on my company’s online and email marketing collateral. I’ve SEO-optimized my taglines to rank when potential customers are seeking the solutions we sell.
I recently stumbled upon a business that was using one of my trademarks in an app store.
When consumers search for my trademark, they may click the link that will lead them to a different app. That outcome, leading to a potential loss of revenue and misled customers, is exactly the kind of situation trademark rules are designed to protect against.
In this case, I proceeded with the assumption of positive intent. To address the problem, I wrote the infringers an email, explained what I discovered and asked them to stop using my trademarked product name. Fortunately, they agreed to cease and desist.
Unfortunately, not all trademark violators respond so positively. In another situation, a direct competitor ignored my polite email messages regarding their illegal use of my registered trademark.
I was particularly concerned in this case because there was a real risk of confusing potential customers. When I pointed out this concern, the violators did not apologize. Instead, they argued that there would be no confusion in the marketplace.
My next step was to ask our legal counsel to reach out and explain the infringement. We continue to vigorously defend against this violation.
Related: Do You Need to Copyright Your Logo? Here’s What You Need to Know.
If you, as a business owner, intend to use a certain wording, design, logo or slogan as a way to brand your product, take a few minutes to ensure that it’s available and is not confusingly similar to someone else’s trademark. Even better, develop and register your wording, design or logo.
The law of trademarks protects the intellectual property of the owner. Avoiding customer and revenue loss are the primary goals. Regardless of whether the illegal use occurs in the local market or on a national scale, or is accidental or intentional, entrepreneurs must be careful to avoid using someone else’s trademark or something that is confusingly similar.
