If you are starting a business, you have probably considered company registration. But you may not know that doing a Trademark search at this stage could save your brand thousands in the long run! This also applies if you are launching a new product line, or if you have been in business for a while but have not yet registered a Trademark. And the best part? It’s FREE!
We’re going to discuss the following:
- What A Trademark Search Is
- Why A Trademark Search Is So Important
- When To Do A Trademark Search, and
- What To Do If You Find A Confusingly Similar Mark
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1. What A Trademark Search Is
A Trademark search involves looking at the Trademarks register, at existing marks or applications. The goal is to identify if your product or brand is the same or similar to another mark already on the register.
2. Why A Trademark Search Is So Important
A Trademark search is important because your brand could be infringing on the same or a similar registered Trademark.
When it comes down to Trademarks, if you could confuse a prospective customer when he/she mistakenly buys your product thinking it is actually the original product, then you have a problem. For example, spelling the mark differently, adding a ‘the’, using a plural, or using a name that is similar to an already registered Trademark are all going to cause confusion.
Some copies are blatantly obvious. But sometimes a business is not even aware that they are infringing on a registered Trademark. And that is why a Trademark search is so important. For this reason, our Trademark registration process always starts with a Trademark search to make sure that a same or similar Trademark is not already on the register.
3. When To Do A Trademark Search
- Arguably, the most important time to do a Trademark search: When you are choosing a new business or product name.
We can’t stress this enough. If you’re starting a business or you’re starting a new product line, please DO THAT TRADEMARK SEARCH. This needs to be done before you spend all that time, money and effort on logo design, branding, marketing, and building trust and reputation with your customers. Because if you do find a confusingly similar mark, before you do all that, you have a golden opportunity to simply choose a different mark and build on that.
The biggest problem is that many people just register their company name and they think that’s enough. However, the problem is that there is a Trademark registration process and there is a company registration process. And these two databases don’t speak to each other. They’re not integrated.
For example, we could actually manage to register the company, “IP Braai”, and someone else could own the Trademark, “IP Braai”. And then months or even years down the line, that Trademark owner could force us to give up our brand and start from scratch. This is the absolute worst-case scenario. In fact, this is actually where you have been building someone else’s brand for them.
- The second most important time to do a Trademark search (If you have not yet registered a Trademark): NOW!
If you find a confusingly similar mark at this stage, you could consider one of these options below.
4. What To Do If You Find A Confusingly Similar Mark
So we’ve established the importance of a Trademark search. But when you do that search and it shows that there is a confusingly similar mark on the register, what options are available?
A. Choose another name
Firstly, if you’re in the fortunate position where you’re just starting up, the easiest option is to just choose another name. This is definitely the simplest, cheapest, least painful route.
B. Buy the brand outright
If your brand is strong enough, and you can actually afford it, you could just buy the Trademark from the original Trademark owner, buy the brand outright.
C. Tweak the Products and/or Services
We could compare your mark to the existing mark. If the products and/or services are not exactly the same, we could perhaps specify your exact products and/or services. You could have a 50/50 chance that we can get your Trademark granted.
D. Register a Logo, combining an image with your brand
Or you could register a Logo, combining an image or graphic with your brand name to further distinguish your mark. And that could improve your chances of successful registration.
E. Honest concurrent usage
You see, as we go through these options, they become more and more complicated and more expensive. A more expensive option would be something like filing for honest concurrent usage. This gives you rights to your brand even if someone else already owns that Trademark. You would thus share the brand in a way.
The important factor here is you would have to prove that you have “common law rights” preceding the date when the initial Trademark was filed. This kind of application would cost at least R20 000, and that is if it is not opposed. An opposition would lead to a court application and would incur significant additional costs.
F. Validity (Court application)
And the final option, if all else fails, is to look at the validity of the registered Trademark. You might be able to attack it in terms of lack of usage, for example. You could thus possibly get it removed from the Trademarks register. But this is extremely expensive because it is a court application. Costs would start from at least R200 000.
Do Your Own FREE Trademark Search
So as you can see, the consequences of not doing a Trademark search can be very expensive. And we don’t want to scare anyone; we simply want make you, the South African Entrepreneur, aware of the reality and how Trademarks work so you’re not caught with your pants down!
This can all be avoided if you simply do a Trademark search when you start your business or launch that new product. And if you can afford it, just register the Trademark before another business registers a Trademark that could limit your chances of registering yours.
To assist, we created a free video with a step-by-step guide on how to do your own FREE Trademark search.
Still wondering what a Trade Mark is? Check out our Trade Mark Fundamentals video.