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Union Leader: KNOW THE LAW: Trademark and Logo Infringements - 01/2010

Written by: Mark A. Wright

This question was answered by Mark Wright of the McLane Law Firm

Q.  I am planning on starting a new business and am currently in the process of selecting a company name.  I also intend to brand a new software product with a trademark and logo.  How do I check if the company name and trademark/logo are available and would not infringe another company’s trademark rights?

A.  The choice of a corporate name, trade name or trademark is an important decision that can have far reaching consequences for your business.  Legal protection extends not only to words functioning as trademarks or service marks, but also to corporate names, logos, designs and advertising slogans.  All to often, however, a person will choose a company name or trademark without more than a cursory investigation of name availability at the state level. 

New Hampshire, along with every other state, provides for state registration of business entities, trademarks and trade names.  In order to avoid a costly dispute over a business name or trademark, I would recommend that you contact a trademark attorney to conduct the necessary searches to determine if your company name and/or trademark will conflict with any pre-existing trademark rights. 

A trademark attorney will normally start with a “screening search” to quickly determine whether there are any obvious conflicts that would present a risk.  Screening searches can be conducted for a few hundred dollars and normally consist of a search of federal and state registrations.  The state where you will form your business entity will also be checked for business name availability.  If the screening search does not reveal a conflict, a full comprehensive search should be conducted.

A comprehensive search, which is normally obtained through a commercial search firm, is typically the last step before the adoption of a corporate name or trademark.  These searches cover a wide array of databases, including the United States Patent and Trademark Office, state trademark and trade name registrations, state incorporation records, various common law non-registered names reflected in trade directories, industry specific publications and Internet domain names.

The important point to remember is that even if the New Hampshire Secretary of State approves your corporate name and permits you to register a trademark in New Hampshire, the approval at the state level provides no guidance on whether your name will infringe the trademark rights of a third party who may be able to force you to change your name and trademark down the road.  If a conflict is found, it will be far less costly to change the name of your company or product early in the selection or incorporation process, rather than later. 

Know the Law is a bi-weekly column sponsored by The McLane Law Firm. We invite your questions of business law.  Questions and ideas for future columns should be addressed to:  Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or emailed to knowthelaw@mclane.com.

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