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How to Avoid Trademark Infringement

By Eric Misterovich

Clients often ask us how they can avoid trademark infringement when selecting a brand identity and selling products. Avoiding trademark infringement is actually fairly easy. All it takes is a little work on the front end to avoid numerous potential problems on the back end.

Trademark infringement frequently occurs when a new business fails to obtain a trademark clearance before it settles on a name and begins selling products or services under that name. A trademark clearance is intended to identify any outstanding trademarks, whether those marks are registered with the United States Patent and Trademark Office or used in commerce, that may pose a risk to the successful registration or use of the business’s trademark. A trademark clearance is a small investment that can help a business avoid expenses later on, such as a trademark infringement lawsuit or responding to a trademark infringement threat letter.

Once a trademark clearance has been performed, businesses can avoid claims of trademark infringement by using competitors’ trademarks in a fair manner. When bidding on keyword advertising, businesses should avoid displaying a competitor’s trademark in the ad text of their ads. When advertising in more traditional mediums, businesses should only use competitors’ trademarks in a nominative fair use sense, that is, to fairly name the product for the purposes of comparative advertising. It is always wise to consult with a trademark attorney before using a competitor’s trademark.

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