Startups, Will Your Brand Name Get
You Into Trademark Trouble?
As a startup, your brand often means so much to the success
of your company. If your brand is
confusing or if consumers fail to find the link between your brand and your
products/ services, it can be catastrophic for your future. When looking for the right brand name, a
startup must be especially careful not to hedge into the lethal ground of
trademark infringement. As Forbes
Contributor, Jess Collins recently noted, “In the real world of trademark
law, a stronger mark has more value and greater ability to exclude others from
using not only the same name, but also anything too similar.”
Whether you’re starting a local services company or the next
global technology superstar, you have to be careful not to use a brand that
some other company has already worked to establish. So, where do you start? In everybody’s favorite Dummies Series’, How
to Trademark Your Brand Name, recommends that you start by creating a list
of 500-1000 variations that you want to consider. The book’s authors also cautiously point out,
“Coming up with a name that appeals to consumers and gaining a nod of approval
from your trademark attorney is a challenging, frustrating, and even painful
process.”
So how do you know if your brand is likely to lead you into
trademark infringement? Trademark lawyer’s
use a “likelihood of confusion” standard, which like all things in law is not
as black and white as it may seem. Often
the legal hurdle a brand name must clear boils down to whether is it probable,
under all of the circumstances, that consumers of the relevant goods will be
confused. The gray area however comes in
navigating a tangled mess of case law that depending on the unique nature of
each name may give some indication on which way things would fall if the court
should get involved. Attorney
Rich Stem gives a more thorough review, where he also notes, “The
protection afforded to a trademark owner may extend to related goods.”
In an age that increasingly embraces crowdfunding and
provides for a faster concept-to-consumer cycle than at any other time in
history, trademark infringement is on the rise. This is not a risk limited to small
businesses as even
Microsoft recently lost their trademark battle for the brand name SkyDrive
against British Sky Broadcasting Group (BskyB).
In all cases, adopting a brand name becomes a business decision between
risk and opportunity. Will your brand
name get you into trademark trouble?
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About the Author: Eric Everson is software
engineer with a law degree. Passionate
about matters of global intellectual property, prior to law school he earned an
MBA and Masters in Software Engineering.
As the former Chief Technical Officer of MyMobiSafe.com, he is a ten
year veteran technology executive within the telecommunications industry. He is
a regular contributor, author, and consultant where technology and business
intersect with the law. The views and
opinions presented in this blog are his own and are not to be construed as legal
advice. Follow: @iamtechlaw
Tags: Startup, Brand, Brand name, trademark, trademark
infringement, intellectual property, trademark clearance, tradename, similarity,
confusion, distinctiveness, WIPO
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