Screening potential trademarks for ads

The Advertiser, in Lafayette, Louisiana, as a story entitled Web search can help avoid trademark violation, which discusses how local business advertisers can avoid potential trademark infringement problems. The article very briefly explains the difference between trademark and copyright law, and various types of trademark infringement. It then recommends:

Doing the research can help avoid that confusion, said Tom Will, a senior vice president with Sides and Associates Inc. Doing a quick Web search on a particular name could easily lead to finding out whether or not a name is already being used for a particular product or service, Will said.

While this is a very good first step, it will not find every mark that could pose problems. To find something on the web, it must first be on the web. Not all materials are posted on the web. Second, the website must be in search engines. Estimates vary, but a good 1/2 of the websites might not be included in the indexes of the major search engines. Reasons vary, but it could be because no one links to those website, or the websites cannot be viewed by search engines (because of flash, frames, and other poorly designed websites). Third, while it is easy to find identical marks through search engines, it is tough to find similar marks through a web search.

So, what to do? A web search is a good start. A trademark search can be conducted through the USPTO's website. This will only show marks that have been filed through the USPTO, and does not search state trademark systems. The USPTO does search for slightly similar marks as well. The next option is to use a trademark search service, through a search firm or a law firm. This will be more expensive, but the search is much more broad.

Which option should you use? The answer depends upon how much money you want to spend. If you're advertising something locally, and you're a small company or single person, then it's not likely that even if you are infringing someone innocently you will be hit for a lot of damages. That said, this is not a sure thing. Some trademark holders do not take kindly to having their marks infringed. If you are planning a longer campaign, or establishing a new brand, you might want to explore whether the mark is being used. Spending money ahead of time to clear a mark can save you costs down the road if you get hit with either a cease & desist letter (and have to rename everything) or get sued (then have to defend yourself in court or even pay damages.)