What Is Trademark Clearance?
January 23, 2016
What Does Trademark Clearance Mean?
A. Clearance refers to the process of searching for pre-existing trademarks that are the same or similar to your proposed mark and assessing whether or not your mark is available for use and free from substantial risk.
B. Searching for existing trademarks prior to adopting your mark is essential!
Consequences of Not Clearing a Mark:
In the event you adopt a mark that infringes the rights of a prior user;
The real owner could haul you into federal court and obtain an injunction to immediately stop your use of the mark.
If a federal registration is involved and the owner can show you acted in bad faith, he could obtain treble damages, attorneys fees and a permanent injunction.
If enjoined, you would face the cost to rebrand your goods and services as well as loss of customer recognition of your product or service and the accompanying loss of business. You would also have to destroy all packaging, advertising and other materials.
Trademark litigation is more expensive than most. Going all the way to trial can easily run $100,000 or more. Good will that was built up with the old mark is lost.
What Is the Search Comprised of?
A. A full search looks at federal and state registrations and applications, domain name registrations, nation wide newspapers and telephone directories, trade journals, internet search engines and the like.
B. Once the search is done, you will want an experienced trademark attorney to interpret the results as the analysis of whether a proposed mark infringes an existing mark involves a highly complex body of case law concerning consumer confusion.
Engaging in the trademark clearance process, even when you hire professionals, does not guarantee that you will never have a legal dispute over your trademark. There is no absolute certainty that your mark is free and clear yet a proper clearance greatly minimizes your risk of future trouble and a legal opinion from a qualified attorney serves as a strong record as to your lack of willfulness should charges of infringement arise.