Written By: Lawrence A. Maxham
A patent applies to a new structure, apparatus, or process that can produce an improved and useful result. Here we are focusing on trademarks.
What Qualifies as a Trademark?
A trademark is a mark used in trade. A mark can be words, symbols, designs (logos), or a combination that, when applied to the products to which they relate, distinguish those products provided by other sources, and indicate the source of origin of those products. Secondary functions of trademarks are to indicate quality and consistency, and they reflect the goodwill of the business that owns the mark.
A question often asked is whether or not a professional search should be accomplished before an application is filed to register the trademark. Unless the goods have been available widely throughout the US for several years, and no conflicts gave come to light, a full professional search definitely should be done.
When to do a Trademark Search?
If it is at the beginning of the life of a new product, it is imperative that a search be done before a lot of money has been spent promoting the goodwill of the business of that product, to say nothing of the efforts and costs involved in developing the graphic design of the mark.
If the search shows that there may be a conflict with an earlier-used, or registered (or both) mark that could create a likelihood of confusion, a change of direction at that time can save a lot of expense and aggravation. Evaluation of the search results by a highly experienced professional is an absolute must. What may be evident to a non-trademark attorney may not be at all evident when professionally evaluated.
A change of a trademark after much has been spent on building and establishing goodwill in relating to the originally used mark is very expensive from a business standpoint. Then there are the direct costs for shifting all references to that product offered for sale under the new trademark.
The same considerations apply to service marks, which are applicable to restaurants, retail stores, delivery companies, or any business that provides services to others.
Why do a Trademark Search?
Since trademarks are property (Intellectual Property), they can be bought and sold, but only in conjunction with the goodwill of the business to which they relate.
Trademarks last forever, as long as they continue to be used for the specified goods/services, and renewals are timely filed. Their value increases with time and geographical expansion.
To reiterate, something as valuable as a trademark should be treated properly at the outset, and a professional search and analysis is the first step in setting those rights in place.
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