Most people who start their own businesses, whether they pursue them full or part-time, eventually find that they want to "brand" themselves in some way. It often starts with business cards. You can get a stack of business cards from Vistaprint for about the price of seeing a movie. And when you order business cards online, you will immediately be given a myriad of options – various fonts, images, styles, etc. Whether you know it or not, you're creating a trademark (or perhaps many trademarks) for your business already.
A trademark, generally speaking, is just about anything (images, words, whatever) that identifies the source of a service or goods. You don't have to federally register that trademark for the trademark to exist. If another party uses some word or image to identify his or her goods and that party's trademark is confusingly similar to yours, you may have a claim for trademark infringement. And just to be clear – you can bring a claim for trademark infringement in cases where no trademark (either yours or theirs) was ever registered with the U.S. Patent & Trademark Office.
Recently, a client asked me to help him decide if certain images and words he was using on his website could prompt another party with similar trademarks to sue him for trademark infringement. I gave him my opinion based on the facts and the law. He then went and made changes to his website in the hopes of avoiding any possible suits for infringement. He was able to decrease his exposure to suit by merely making a handful of changes to the content of his site.
However, there is no guarantee that someone will not bring suit against him based upon a good faith claim or even an erroneous understanding of the law. No lawyer can guarantee a client immunity from claims brought by unknown parties. Moreover, since a party can sue based upon trademarks that have not ben federally registered, there is no way an attorney can present a client with a list of registered trademarks and tell him or her that if the client simply avoids using trademarks from that list, or creating trademarks similar to those on the list, they will be immune from suit. Unfortunately, it's not that simple.
Only a nuanced understanding of the facts -- combined with a thorough review of the law -- will allow an attorney to tell a client how exposed the client may be to possible suit for trademark infringement. Nothing less will suffice.
I can audit your business for trademark infringement claim liability.
To do so, I review your marketing materials, website, product labels, stationery, business cards, logos, etc. -- anything that you use to identify your business in the marketplace. Then I review the law for the most recent court holdings and statutes that may affect you. I will also scour the marketplace, checking to see whether there are other parties out there who might view you as an infringer of their trademark. Then I will advise you regarding your exposure to claims for trademark infringement and discuss ways in which you can reduce that liability.
If you think you may be sued for trademark infringement, or you just want to know what the risks are, call me now. I can perform a T.I.L.A. (Trademark Infringement Liability Audit)* that will help you conduct business more safely and give you peace of mind.
I can also perform a C.I.L.A. (Copyright Infringement Liability Audit)*. Or I can do both at once for a very reasonable, flat fee.
Call me, Greg DePaul, at (973) 376-8585 and ask about a T.I.L.A. or a C.I.L.A.
*Can also be known as a T.I.L.R. (Trademark Infringement Liability Review) and a C.I.L.R (Copyright Infringement Liability Review).