Another source of problems is the tendency of businessmen to get attached to a mark before it is fully cleared, and as a result ignores warning signs of potential problems with the mark.\u00a0 When deciding whether a prior mark is an obstacle, one must be able to dispassionately and honestly answer the question: if the priority of use were reversed, would you object to their mark?\u00a0 If so, then there is good reason to believe that adoption of the mark might lead to problems.<\/p>\n
The business should select a mark that is unique<\/strong> and distinctive<\/strong>, that does not conflict<\/strong> with a prior registered or unregistered mark, and is immediately protectable<\/strong> and registrable<\/strong>.<\/p>\n The mark you select must not be confusingly similar to a prior mark.\u00a0 Confusing similarity is judged by a number of factors including:<\/p>\n The way to identify conflicting marks is to conduct a trademark search.\u00a0 There are three levels of searching: (1) Federal trademark applications and registrations; (2) state trademark registrations; and (3) common law trademarks.\u00a0 Federal trademark are searchable for free at www.uspto.gov<\/a>.\u00a0 Some state trademarks are searchable for free at various state websites, but a complete collection of all of the states is only searchable on pay databases.\u00a0 Common law trademarks can generally be searched on the internet, although relatively small minor uses may be buried are readily searchable on the internet.<\/p>\n \u25a1\u00a0 The mark has a unique or distinctive feature.<\/p>\n \u25a1\u00a0 The mark is not confusingly similar to a prior art.<\/p>\n \u25a1\u00a0 The mark does not dilute the distinctiveness of a prior famous mark.<\/p>\n \u25a1\u00a0 The mark does not tarnish a prior famous mark.<\/p>\n \u25a1\u00a0 The mark is not confusingly similar to a prior art.<\/p>\n \u25a1\u00a0 The mark does not contain immoral, deceptive, and or scandalous matter.<\/p>\n \u25a1\u00a0 The mark does not disparage or falsely suggest a connection with persons living or dead, institutions, beliefs or national symbols or bring them into contempt or disrepute.<\/p>\n \u25a1\u00a0 The mark is does not contain any the flag, coat of arms, or other insignia of the United States, a state or municipality, or a foreign nation.<\/p>\n \u25a1\u00a0 The mark does not contain the name, portrait, or signature of a living person (without permission).<\/p>\n \u25a1\u00a0 The mark does not contain the name, portrait, or signature of a deceased president without the permission of the surviving spouse.<\/p>\n \u25a1\u00a0 The mark is not merely descriptive.<\/p>\n \u25a1\u00a0 The mark is not deceptively misdescriptive.<\/p>\n \u25a1\u00a0 The mark is not primarily geographically misdescriptive.<\/p>\n \u25a1\u00a0 The mark is not primarily merely a surname.<\/p>\n \u25a1\u00a0 The mark is not inadvertently offensive.<\/p>\n The law does not require a business to conduct a mark before adopting a mark, although courts are often critical of businesses that do not conduct a search, particularly where the business has the resources to do so.\u00a0 It is in a business\u2019 interest to avoid a trademark infringement claim, and to avoid wasting time and money creating and promoting a mark it will have to give up.<\/p>\n To properly evaluate a search, consider:<\/p>\n No trademark search can completely eliminate the risks of adopting a new mark, but searching can significantly reduce those risks.<\/p>\n","protected":false},"excerpt":{"rendered":" While branding is important, selecting a mark for a new business can occupy a disproportionate amount of management\u2019s time and the company\u2019s resources, and present significant risks to the business. The biggest source of problems is the tendency of businessmen … Continue reading Avoiding conflicts with Prior Marks<\/h1>\n
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Checklist for the selection of a mark<\/h1>\n
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