Trademark Brainstorming Process

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Ready to start your new company and establish your brand? Great! Now put a cork in that enthusiasm and take a pause to really consider your brand’s name.

If you are considering registering a name or a product, an initial trademark search will help you avoid potentially costly mistakes of lost marketing dollars, legal fees and future costs of maintaining and enforcing rights.

A basic trademark search is your chance to “kick the tires,” and become familiar with both the potential problems and benefits prior to embarking on a long term commitment.

A few important facts to consider in your search:

1. Analyze not only Federal registrations and applications but also State and references across the country, as well as domains

There is a lot of confusion as to the interplay between domains and trademarks. A domain name is an address or location. It may or may not be a trademark, or serve as a barrier, depending up whether it is a descriptive search term or contains a distinctive term. Internet marketers love descriptive search terms because they are be good for search engine purposes. However, they are problematic for building brand value and increasing the long term value of your intellectual property.

2. Is the same mark in use for the same or similar goods and services?

Variations in spelling are not enough to be considered a different mark. Simply changing the spelling is not enough.

3. Look for companies in related, but not directly competitive, goods and services which might block expansion of your product line

For example, orange juice and vodka are related goods. The name for one can preempt the other if challenged.

4. Stay away from trendy terms

If the search shows a number of applications filed or registrations containing the proposed mark, even if for different goods and services, this is a flag. It often serves as a sign the term will be difficult to protect and then it will very narrowly protected.

On the other hand, if there are few users of the term, you have likely found that valuable real estate called an “inherently distinctive” mark, one that can be used without getting sued, and which you can use to prevent unwelcome intruders into your market.

5. Avoid using prefixes and suffixes.

The more competitors who use a prefix or suffix, the weaker the mark. For example, in the pharmaceutical industry, the ending “in” for any product containing an aspirin ingredient has been held to be generic and hence not a legally protectable element of a mark.

Even if you’re on a budget, a little time spent with legal counsel analyzing search results can provide a way to side step potential land mines, and illuminate the dark path to wise selection and protection.

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