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Trademark law basics for small business owners

A big part of running a successful small business is setting your business apart from the competition. One effective way of doing this is by using a trademark. Simply stated, a trademark is a brand name. It could be a logo, slogan, word or symbol. It could even be lyrics to a song or a scent.

Examples of famous trademarks include Target's bullseye symbol, Geico's famous talking gecko, and McDonald's "I'm lovin' it" slogan.

How do I protect my trademark?

Interestingly, it is not necessary to do anything official to protect your trademark. Trademarks are protected under common law by actual use of the trademark. So, by using the trademark in commerce, it becomes yours. To reserve the right to use a trademark in the future, you may register the trademark with the Patent and Trademark Office.

There are also advantages to registering a trademark that is already in use, including that it makes it obvious to the public who the owner of the trademark is. Registering also makes it easier to defend the trademark in court.

What is a trademark infringement?

Trademark infringement occurs when one business uses a trademark that is the same as another business' or similar enough that an average consumer is likely to be confused in telling the businesses apart.

When trademark infringement has occurred, the business that owns the trademark may sue the infringing business to make it stop using the trademark and pay damages that resulted from the infringement.

Steps to take to stop trademark infringement

Did another business rip off your branding? This happens a lot, sometimes intentionally and sometimes unintentionally. In either case, you can ask the infringing business to stop.

1. The first step is to contact a lawyer who is experienced handling these types of claims.

2. Typically, the lawyer will send a "cease and desist" letter in effort to get the infringer to immediately stop using or otherwise diminishing your trademark. In some cases, a letter may be all that is necessary to get the infringer to stop.

3. If the infringer ignores your letter, or you believe that you lost any business or suffered another type of financial harm because of the infringement, then you may decide to file lawsuit to demand that the infringer stops and/or to collect damages.

Your lawyer can go over your options and help you decide the best route to take.

How you can avoid infringement

If you are concerned about infringing on another business' trademark, keep these tips in mind:

  • Avoid using anything that is close to resembling another business' trademark. Remember that infringement doesn't have to be an exact copy, it just needs to be enough to cause confusion.
  • Do a quick Google search to see if the trademark you want to use is already being used by another business. Also search the state and federal registers.
  • Work with a lawyer who is familiar with trademark law and can advise you on whether you need to worry about infringing or not.

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