Under U.S. trademark law, infringement occurs when a business name, logo, or other brand identifier is so similar to an existing trademark that it could confuse consumers. Whether you meant to copy another brand or not is largely irrelevant. If the trademark owner believes customers might mix up your business with theirs, they have the right (and responsibility) to take legal action. Intentional infringement can lead to the infringer owing additional damages, but unintentional infringement doesn’t let you off the hook.

Here’s an Example:

You open a coffee shop called “Starbuzz Café.” You genuinely came up with the name yourself, thinking it was unique. But because "Starbuzz" sounds a lot like "Starbucks" and is in the same industry, you could be sued for trademark infringement, even if you somehow never heard of Starbucks.

You do not want to have to deal with an infringement lawsuit. They’re time-consuming and expensive, especially if you lose, as not only will you owe money, but you’ll also have to rebrand, which also is expensive and time-consuming, and it can confuse your customers.

The same goes for getting a valid cease-and-desist letter. If you aren’t 100% sure you have the best claim to your name, you should consult a trademark attorney to find out, and if you need to take action to make changes, do it ASAP to try to avoid trouble.

Even an honest mistake can land your business in a trademark dispute. Protect yourself by researching trademarks before choosing a name, or if you’re just not certain about the name you’re using, and if you get a legal warning, take it seriously.

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Many small business owners assume that if they didn’t intend to copy someone else’s trademark, they can’t be sued for infringement. Unfortunately, intent doesn’t matter. If your business name, logo, or slogan is too similar to someone else’s registered trademark, even by accident, you could still find yourself in legal trouble.

In this episode, I cover:

• Is Intent Required for Trademark Infringement? 0:04
• Why Are Trademark Owners So Aggressive About Infringement? 1:48
• 4 Ways to Avoid Trademark Infringement Trouble 3:04

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To avoid these pitfalls, aim for names that are suggestive, arbitrary, or fanciful:

• Suggestive: Hints at what you do without being too obvious (e.g., “Netflix” suggests movies but isn’t just “Online Movie Rentals”)
• Arbitrary: A common word used in an unrelated context (e.g., “Apple” for computers)
• Fanciful: A completely made-up word (e.g., “Xerox,” “Kodak,” or “Nanker Phelge”)

A great business name isn’t just catchy; it’s legally strong. Before committing to a name, conduct a trademark search and consult an intellectual property attorney to ensure you’re building your brand on solid legal ground.

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Sometimes, a mark that suffers from the ailment of being generic, descriptive, or primarily a surname (or some other problems) can be registered on the USPTO’s Supplemental Register, which is like the opening band before the main act (or the junior varsity team if you prefer a sports metaphor). It doesn’t give you the full rights being on the Main Register does, but it’s better than having no kind of registration. Then, over time, the mark may gain enough fame to qualify to be on the Main Register.

It’s far better, though, if you can, to start with a name that qualifies for the Main Register.

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Many businesses are named after their founders, but if your business name is primarily a surname, you could run into trademark challenges. The USPTO generally considers surnames to be not inherently distinctive, meaning they don’t qualify for trademark protection unless you can prove that the mark is more than just a surname.

For example, “Jagger’s Bakery” or “Richards Consulting” may not be eligible for trademark registration unless you can demonstrate one of the following:

• Consumers associate that surname specifically with your business, rather than just recognizing it as a common last name;
• The mark has a secondary meaning, like King standing for the concept of royalty or being the biggest or best, like “I’m a King Bee,” not just being my last name; or
• There are other important words in the mark that make the mark more than just a surname (these have to be words that aren’t generic or descriptive terms).

Big brands like McDonald’s and Ford successfully registered their names because they built strong brand recognition over time, but new businesses using common surnames will face an uphill battle in securing exclusive rights.

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The U.S. Patent and Trademark Office (USPTO) won’t grant trademark protection to business names that are purely generic (e.g., “The Coffee Shop” for a café) or merely descriptive without acquired distinctiveness (e.g., “Cold & Refreshing” for a bottled water brand). Here’s why:

1. Generic Names Can’t Be Owned. A generic term is simply the common name for a product or service. No one business can claim exclusive rights to “Pizza Restaurant” or “Lawn Care Services” because those terms must remain available for everyone in the industry to use. You can have those in your name, but you’d better also have something non-generic and non-descriptive with them, like “Bluebird Pizza Restaurant” (unless you are in a town named Bluebird, because locations are also a no-go as generic).
2. Descriptive Names Are Weak. A name that merely describes the goods or services, like “Tasty Burgers” for a fast-food joint, will face serious hurdles in the trademark process. The USPTO may reject it unless you can prove that customers associate the name specifically with your business over time (which often requires years of strong marketing and consumer recognition).

Take the case of Booking.com. Initially, “booking” was deemed too generic to trademark. However, the company was able to prove through extensive evidence that consumers recognized “Booking.com” as a distinct brand rather than just a category of service. This is an exception, not the rule; most businesses don’t have the resources to establish this level of brand recognition, especially at the beginning.

(This discussion of generic trademarks is different from how a trademark can become generic, which is known as genericide. That's a topic for another post.)

#trademark #trademarks #trademarklaw #trademarklawyer #trademarkattorney #trademarklawfirm #iplaw

When starting a business, choosing the perfect name is one of the most exciting and crucial decisions you’ll make. You want a name that tells customers what you do, is easy to remember, and stands out in the marketplace. Here’s the catch: if your name is too generic or merely descriptive, you could be walking straight into a trademark trap that leaves you legally vulnerable and unprotected.

You don’t have to be practiced at the art of deception and have an infringing name to be denied trademark protection. Many business owners don’t realize this issue until it’s too late. Imagine investing thousands in branding, signage, and marketing only to discover that your business name can’t be legally protected. Worse yet, a competitor could use the same or a similar name, and you’d have no legal recourse.

#trademark #trademarks #trademarklaw #trademarklawyer #trademarkattorney #trademarklawfirm #iplaw

When starting a business, choosing the perfect name is one of the most exciting and crucial decisions you’ll make. You want a name that tells customers what you do, is easy to remember, and stands out in the marketplace. Here’s the catch: if your name is too generic or merely descriptive, you could be walking straight into a trademark trap that leaves you legally vulnerable and unprotected.

You don’t have to be practiced at the art of deception and have an infringing name to be denied trademark protection. Many business owners don’t realize this issue until it’s too late. Imagine investing thousands in branding, signage, and marketing only to discover that your business name can’t be legally protected. Worse yet, a competitor could use the same or a similar name, and you’d have no legal recourse.

In this episode, I cover:

• What Can Happen if Your Trademark is Too Generic or Descriptive? 0:00
• No Security: Why Are Generic and Descriptive Names a Problem for Trademarks? 0:52
• Mr. Pitiful: Why Can Last Names Be Trademark Trouble? 2:44
• Can You Get Trademark Registration for a Name that Is Generic, Descriptive, or a Surname? It’s Not All Doom and Gloom: The Supplemental Register 4:02
• What to Do: How to Choose a Strong, Protectable Business Name 4:46
• Do As I Say, Not As I Do! 5:40
• You Can't Always Get What You Want, But If You Try Sometimes, Well, You Just Might Find You Get What You Need 6:28

#trademark #trademarks #trademarklaw #trademarklawyer #trademarkattorney #trademarklawfirm #iplaw