
Vetting a New Trademark: How Upfront Trademark Diligence Can Minimize Future Headaches
Before adopting a new trademark or filing an application for federal trademark registration, it is wise to conduct clearance searching. There are various purposes behind clearance. These include 1) dispute avoidance; 2) ensuring the mark as strength; 3) evidence of diligence and good housekeeping.
Dispute Avoidance. First and foremost, searching helps assess whether the chosen mark is likely to trigger a dispute with someone who already adopted the same or a similar mark. Importantly, trademark conflicts are not limited to the use of an identical mark for an identical product or service. Instead, the legal analysis typically focuses upon whether the existence of two similar marks in the marketplace might lead consumers to assume that the products come from the same source or that the sources have a relationship or are otherwise associated with each other. Furthermore, contrary to popular belief, trademark rights are effective upon the first use of a mark on a commercial product or service. Marks need not be registered. Therefore, the best way to avoid a dispute is to search the landscape of other users in the marketplace to be sure someone else didn’t hatch your great branding idea before you did.
Strength Assessment… Keep reading