If you learn one thing from this blog, let it be this: run a due diligence search before you begin operating a business with any name, logo, or begin to spend money on branding.
Sometimes, you will get lucky, and spend thousands of dollars on branding, only to later find out that there are similar names out there, and you hustle and get your application in first.
In other instances, you try to do the right thing: you hire a designer to create your professional branding, and then you hire a lawyer to run a due diligence search…only to find out that there is a name nearly identical to yours out there, that can cause confusion in the marketplace. This can be a heartbreaking discovery, and while it is difficult to go back to your designer and pay to rebrand right off the bat, better to do that than get sued.
Then, there are those other instances, where you go through the branding process, you use your name in commerce for months, maybe even years, and then you decide to get around to trademarking. Except, when you (or your lawyer) runs the due diligence search, some similar names arise, but you decide to trademark anyways. However, this act of filing your trademark application puts those businesses on notice (because savvy businesses have a team of lawyers watching what trademarks get filed), and they oppose your application. They don’t just oppose it, they follow it up with threats of litigation, and sometimes, will wind up “settling” with you for a “nominal” 5 figure annual licensing fee.
It’s heartbreaking to see entrepreneurs go through this, and what’s worse, it’s ENTIRELY avoidable by taking the simple step of running a legal due diligence search before you embark on the branding side of business.
A “legal” due diligence search is more than just a standard google/social search. This is an extensive due diligence search that an attorney runs prior to filing a trademark application, and can be performed prior to the branding process itself. And word to the wise: graphic designers, this should be a service you consider offering to your clients before the branding process begins. It will take an attorney well-versed in intellectual property law to provide accurate feedback on those reports, but those are strategic networking partnerships you can begin now that will drastically elevate your professionalism, and the professionalism you provide to your clients.
If you are considering rebranding your business, or branding your new business, contact our office to schedule an appointment with our office to run a legal due diligence search before you pay thousands to your designer.