In this second installment of our three-part “Business Tips” series, we will be addressing the importance of choosing names which do not infringe upon trademarks, service marks, or other copyrights already owned by others. For those unfamiliar with our series, we encourage you to read our previous article, “Business Tips – Naming Your Business.” The inclination to create slogans or sayings that identify business goods and services is common in modern advertising, but an owner must be careful to not infringe on another person’s licenses or trademarks.
Now, you may be thinking, someone cannot have a trademark on a saying or figure of speech. If Bill Billiams wanted to open Bill’s Billiards and produce custom pools balls which are stamped with a logo stating the slogan, “We keep the ball rolling,” no one can stop him, right? Wrong. His logo and slogan would only be allowed if an existing company did not already employ the use of either. This is because certain advertised logos, slogans, and phrases may qualify as “trademarks.” Under Michigan and Federal law, a trademark is defined as an identifying word, symbol, or saying that is used to distinguish one company’s products from another.
The fear of legal ramifications can be circumvented through a careful search of current Federal & Michigan Trademarks and Service Marks, which can be found on the LARA website, under Michigan Registered Marks and the USPTO website under Federal Registered Marks. A thorough search through this tool should be conducted before beginning to brand your business. Proper registration must be completed through the submission of an application, which you should prepare with the help of an attorney. Compliance with these steps is crucial in securing a legally defensible service mark and protecting your business from future liability involving infringement claims. If you do choose to register a trademark or service mark, you must diligently work to protect it. Michigan law does not look favorably upon entities who are selective in asserting their ownership rights against some infringers but not others.
It is also important to convey to our readers that it is not necessary to apply for a trademark or service mark if the phrases or symbols which they are interested in are not currently registered by another entity. Applying for exclusivity is an advisable precautionary measure, but not necessary for those who do not worry about maintaining control of use.One cannot take the task of searching for possible infringements lightly, however, as mundane common words and symbols such as xerox or a jack-in-the-box may be heavily protected by corporations because of their existence as business names and mascots.
Demorest Law has historically provided protective services through which professionals can assert and defend their business rights. We also maintain strong relationships within the legal field, which would allow our team to direct you to a Trademark attorney if the need so arises.
This Article was written by Nezar Habhab, Law Clerk.