Any person or business entity offering any type of good or service on the Internet today must be aware of the importance of trademark law. In particular, whether it is the use of a domain name, the use of a trademark to identify certain goods, or the use of a service mark to identify particular services, such uses are likely to implicate federal trademark law. This is because the Internet is everywhere, which means your prospective customers, existing customers, and competitors are everywhere. While in the past an individual or business entity could operate its store or offer its service only within a certain geographical location, the Internet has made businesses international. As such, not only may you now qualify for a federal trademark or service mark with the United States Patent and Trademark Office, but you may also be at risk of trademark infringement due to your use of a third party’s mark in interstate commerce.
As a reminder, trademark law requires that in order to qualify for a trademark, an owner must use a distinctive mark in interstate commerce. Therefore, if you believe you are using a mark that is not generic or descriptive, and using that mark to sell goods or services via a website on the Internet, you may qualify for a trademark with the United States Patent and Trademark Office (USPTO). Even if you choose not to seek registration with the USPTO, you may still have common law trademark rights in locations where you do business. While this is the benefit of conducting business via the Internet, there is also a new risk that start-up companies and businesses often overlook.
The most important risk to be aware of is trademark infringement. Namely, your use of a character mark, design plus words mark, or logo on your website to sell your goods or services may create a likelihood of confusion with another trademark owned by a third party. Should this third party discover your use of a confusingly similar trademark, they may seek to ensure that you do not continue use of the trademark, stop using a domain, or even attempt to sue you in an effort to collect damages or enjoin your business from continued operation using that trademark. As such, it is now critical that all Internet businesses have a trademark clearance performed prior to operation on the Internet.
A trademark clearance, also known as a trademark availability assessment, allows a qualified trademark attorney to review and analyze current uses of your particular trademark as well as those that may create a likelihood of confusion, which equates to trademark infringement. While a search of the USPTO Database will reveal pending applications and registrations, it is also important to understand that common law trademark rights may be sufficient to create problems for a business. As such, any prior use of a mark that is likely to cause confusion with your mark needs to be identified and analyzed. Ultimately, failure to do so may result in you having invested significant time, marketing and advertising dollars, and effort to create your business and associated brand only to discover that a third party has prior rights to the trademark or service mark you use.
Therefore, a prudent business person will recognize the value in a trademark clearance and seek to ensure the availability of its particular trademark or service mark in light of the Internet’s development. While a trademark clearance reveals potential problems, it may also reveal that you are indeed the first to use a particular trademark or service mark, and therefore, you may be entitled to seek a federal trademark registration with the USPTO. While you can rely upon your common law trademark rights, a trademark registration with the USPTO offers significant benefits that have tangible value to any business owner. Regardless, with the advance of the Internet and global reach of businesses, no one should overlook the importance of a trademark clearance, and if possible, the benefits of a trademark registration.
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