When you start your own business, you already have an idea for your business, and so the next logical steps always seem to be: 1) register an Internet domain name, 2) get business cards, and 3) reserve a name for your product or service (a trademark).
The first two steps are easy, and you decide to do those yourself. You may be unsure whether you can reserve a trademark, and so perhaps you check around on the Internet to see what local trademark attorneys charge to help you. Initially thinking that a trademark attorney can help you for $100 or so, you’re shocked when you see what trademark attorneys actually charge.
Next you may look at so-called “self-help” services. While often less expensive than a trademark attorney, you have to ask yourself “what am I really getting from the self-help service” that you couldn’t just do on your own.
I can spend the rest of this post explaining why trademark attorneys charge so much, and why using self-help services is a bad idea. But that’s not my purpose today. Instead, I want to tell you a few things that everyone must know about trademarks, and why if you don’t understand these basics, you can find yourself in a heap of trouble.
1. You need to know if anyone else is already using your mark. This may seem obvious. If you wanted to set up a coffee shop, you’re going to need an original name. You know that you can’t trade off of the goodwill of established and well-known coffee houses. A good place to start is with a general Internet search engine, such as Google, Yahoo, and Bing. Next you might try searching the state registers and the US Trademark Office. Most state registers are available online now, and the US Trademark Office database is available online for free.
2. You need to know if your mark would be confusingly similar to anyone else’s mark. What does that mean? Just because you don’t find an exact use of your mark, the standard for registering a trademark with the US Trademark Office, and the standard for trademark infringement, is whether a consumer of products or services would be confused by the use of the two marks in question. This is really where the trademark attorney earns his or her fee. It’s generally easy to find out if someone is already using your exact mark for the same goods or services. It’s a lot harder to identify and then determine whether someone else’s mark, although not identical to yours, might be considered confusingly similar.
This is why its best to hire a trademark attorney to assist you with this determination. Trust me, if you try to register your mark or start using your mark, you may find yourself faced with a letter from someone else’s attorney telling you to stop or face an infringement action (this is called a “cease and desist letter”). Getting yourself out of this mess is going to cost you a lot more time, money, and heartache, than if you had just paid the trademark attorney to help you in the first place.
3. You cannot use the encircled “R” notation. That is, unless and until you receive a federal trademark registration from the US Trademark Office. Otherwise, you are violating the trademark laws. And you may also be violating other state and local laws, rules, or ordinances based on consumer protection or fraud.
So can a trademark attorney save you money? While reserving your trademark may seem as simple as ordering business cards at your local office supply store (so why pay a trademark attorney), there are many intricacies that a trademark attorney can help you with that can trip you up and end up costing you more in the long run than if you don’t hire a trademark attorney from the get-go.