Trademarks: Why Search?

At the start of a new business venture or before the launch of a new product or brand, business owners sometimes question the need for a trademark search. Well, there are a few good reasons not to skip that step, and we summarise them in this article.

Avoiding the ‘cease and desist’ letter

From our own experience with helping clients, one of the worst feelings you can have as a business owner is the one you receive when you open up a ‘cease and desist’ letter from a lawyer. This is a letter which alleges you’ve been infringing someone’s trademark and requiring you to cease using your brand almost immediately.

The time, expense and emotional energy involved in this process can’t be under-estimated. If you don’t manage to answer the allegations (which can be an expensive process in itself), you’ll often have to recall or destroy all items that carry your branding, including business cards, letterheads, advertisements (including online and hard copy), product packaging, signs and banners etc. Then you’ll have to re-brand and re-print, and re-deploy all of the destroyed or recalled materials.

Clearly, it’s best to minimise the risk of this situation occuring by paying a few hundred dollars (or taking the time to do your own thorough searches) before you commit to your brand.

Giving yourself the best chance at registration

By far and away the best way to protect your brand is through trademark registration. However, the process isn’t cheap – especially when it involves multiple trademarks in multiple classes. Before you commit the time and money to the process, and before you spend any money on advertising and branding, it makes sense to do a registrability search. A good search will identify whether you can obtain the legal protection that’s needed.

Cliché of the day: It’s better late than never

Even if (like many of our clients) you have already committed to a particular brand before doing a trademark search, it’s nearly always better to do a trademark search before filing a trademark application. A proper search can help you to draft your application to avoid objections identified.

Near cliché: Prevention is better, because sometimes there’s no cure

Simply ensuring that adequate searches are performed at the start of your branding process can help you avoid infringing another trademarks and ensure your registration goes through without a hitch. If you launch your brand only to discover that you’ve been infringing someone else’s trademark, or that you can’t protect it by registering a trademark, an unpalatable option may be to re-brand – which doesn’t sound like much fun … does it?