Meriam Webster defines “Precarious” as “dependent on chance circumstances, unknown conditions, or uncertain developments; characterized by a lack of security or stability that threatens with danger.”
The phrase “but I didn’t know” is the reason I started my firm. I heard this phrase so many times from small companies when I worked for big firms and represented the large companies. These small companies were taking chances by operating in unknown conditions. This risk was not necessary, and I want to show them the way to certainty.
My mission is to inform, educate and represent small and mid-sized companies in the world of intellectual property, and specifically brand rights. Informing and educating are so important, because IGNORANCE IS NOT AN EXCUSE!
It’s in this vein that I present today’s warning sign– you could be liable for infringing a company’s brand even if you had never heard of the company. So many small business owners think that if *they’ve* never heard of a company in their space with a similar name, then they must have full rights to use their name. This is not true!
The test for infringement is likelihood of confusion. While willfully copying another company’s brand can make you a bad faith infringer, you are still liable for infringement even if you are not aware that a company with a similar name existed.
The good news is that checking for infringement is relatively inexpensive if done by an expert. Not performing a check shows a lack of care for your business. Having a check performed by a non-expert is the same as not performing a check at all.