Look Before You Leap

Richard Rimer

March 9, 2023

Brand protection is a four-step process. Step one is searching.

Brands distinguish your goods or services from those of your competitors. You cannot own a brand if it is similar to someone else’s brand, or if it is not distinctive.

There are two major objectives to searching. First, you need to make sure that using your brand is not too risky. Second, you can determine how broad your rights in the brand can be.

On the first point, you can be found liable if you use a brand that is likely to be confused with an existing brand. It takes special tools and knowledge to make this determination and to appropriately evaluate the risk. (And no, Google is not a special tool.) Also, you need to pick a brand that is distinctive enough to be afforded full rights under the law.

Next, you need to understand how far you can go with the brand. Sure you are selling widgets today, but can you sell gizmos under the same brand tomorrow? What about geographic growth? Knowing these limitations on the front end could save you a lot of time, money and frustration tomorrow.

We can perform multiple levels of searching. The analogy I like to use is to compare it to a review of the soil quality for gardening. If I wanted to start a garden in my backyard I perform a search to see if my soil is suitable. I could simply kick the dirt around to see what color the top layer is. Next, I could dig up a shovel full to see how many worms there are and maybe check the ph level of the soil. Finally, I could hire a backhoe and run a full series of tests on the soil in various parts of my yard. The level I chose indicates how serious I am about success. My firm offers a mid-level search for $275.

I like to think of brand protection in terms of real property. Searching a brand is much like clearing the title to land to make sure the seller really owns the land. There is no sense in moving forward if you can’t own the land. It amazes me how often people begin building their business on top of a brand they aren’t sure they own.