Juliet famously mused: “What’s in a name? That which we call a rose by any other name would smell as sweet.” I humbly submit that if Juliet was in the business of selling flowers, she would have seen things a little differently. She would have realized that there is a lot “in a name.” Because if Juliet sold flowers for a living, then people all around Verona (that’s where Juliet and her paramour, Romeo, lived) would use the “name” she chose for her business to differentiate her flower business from every other flower business. In other words, they would want to know Juliet’s “trademark.”
What is a trademark? It’s a symbol, image, word, group of words, number, or sound that designates the source of origin for goods or services. A trademark tells the world “who” you are, not “what” you are. In our hypothetical twist on Shakespeare, above, Juliet would likely not simply call her store “Flower Store,” because that would not help the flower buyers of Verona remember where they bought those awesome arrangements. Instead, Juliet would want to pick a name that told the flower-buying public who she was: “Star-Crossed Bouquets,” maybe?
So how do I obtain rights in a trademark? In a lot of ways, trademark law can be counterintuitive and different from other types of “intellectual property.” For instance, to acquire patent rights, you need to file a patent application. Acquisition of trademark rights differs from copyrights, too. If you have a clever idea that can be characterized as an artistic expression, and you write it down: Bingo, you have a copyright, and you can prevent others from copying your work. You can think of the coolest trademark in the world, but to own the mark, you need to use the mark in commerce.
But aren’t there trademark registrations? Yes, there are. You can register a trademark at the state level and federal level. And though registration offers benefits, the registration of a trademark does not confer substantive rights on the user, and you can infringe upon someone else’s unregistered trademark.
To help avoid a claim of infringement, you should always conduct a full trademark search before you use the mark in commerce. Words of caution: A “Google search” is not a full trademark search. A search of the United States Patent and Trademark Office database is not a full trademark search (but it is a good start). Instead, there are search firms that specialize in full trademark searches. They will search federal and state databases, in addition to hundreds of other sources, to determine if there are other potentially confusingly similar trademarks in use that may pose a risk to your appropriation of a trademark for use in commerce. That way, you can keep your roses smelling sweet.
Scot Claus ia a partner at Dickinson Wright PLLC
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