Around the Wash: Trademarks The Name Game Why trademarking your business name is a smart and important move. BY ROB SCHRUEFER rob@onspotdetailing.com If you have the ambition to grow your business into a brand, there are a few things that you must think about from the very beginning. The most important being what will your business be called. A misstep here could result in legal action and losing the rights to your name years after you have established your business. Few people think about what their business might be in 5 or 10 or 20 years down the road when they are in the early stages of establishing a company. The thought of having to enforce your business name or having someone enforce their rights on you, might seem unrealistically far away. The reality is that if you have poorly chosen a name, you are not alone as it happens more often, and sooner than you think. If the owner of a trademark discovers someone using the same business name in the same industry, they are obligated to notify the offender and protect the mark. Failure to do so could cause them to forfeit the mark, so expect they will do something about it immediately. Personally, I have sent countless “Cease and Desist” letters to companies using the On The Spot name. It is not because I want to be a jerk about it, it is because I have to do it. Quite often I discover these other companies when a disgruntled customer calls us to complain about the other company thinking we are the same. One of the qualifying factors for enforcement is whether someone can be confused as to who they are dealing with. A business in the same industry using the same name meets that qualification. As my business expands into new areas, we also come across established detailing companies using the same name. With the trademark, I have the right to use the name over them, no matter how long they have been using it. Unfortunately they will be forced to stop using the name and rebrand or face legal and financial consequences. To avoid this hassle, you should start by identifying any potential problems from the start. The easiest way to accomplish this is to hire an Intellectual Property Lawyer and have them set you up legally. If that is not financially possible, there are three places I would suggest checking prior to naming your business: 1. LOCALLY: Do a Google search in your area to find out if anyone else is operating under the name that you wish to use. Remember: It’s not just car washes. A business, such as a laundromat or pet wash could be using your name. If there is someone that is established and still in business, you should try thinking of another name. 2. STATE: If you cannot find someone on an Internet search locally, that does not mean the name is not registered with the state already. Each state has a place on their .gov site where business names can be checked for conflicts. The state will not prevent you from using the same name with variances, especially if there is a DBA (Doing Business As) in the listing. For example, my business legally might be called Rob’s Detailing LLC, D/B/A On The Spot Detailing. Being registered with the state does not protect the name of the business or from trademark infringement. 3. FEDERALLY: The most surefire way to avoid a potential problem is to check on the Federal Trademark Registry for your business name. This can be found at www.uspto.gov/trademarks.search. If you find the name here, stop and go back to the drawing board. Finding the name on a federal trademark search means that someone took the time and money to federally protect their name and/or logo, and are more than likely to enforce it through legal means. Once you have found the name that works for you, and no one else is using it, you should protect it. This means you will have the rights to the name, and no one can prevent you from using it. This will cost a few thousand dollars with an Intellectual Property Lawyer, but after a few years it will become incontestable, meaning that no one can challenge your right to the name. You must continue to use the trademark symbol, and keep up with the filing. I remember when I first started out, I was unable to obtain my trademark because another company had it registered. They were a tire company that did car washes somewhere in the Midwest, but they were not still in business. I had to wait for their rights to expire before I could move in and get it for myself. No matter if you dream of being a national company, or a local one, you should protect yourself and your rights. Having someone force you to stop using the name of your business will cause customers to be unable to find you, force you to rebrand all of your marketing materials, cost a fortune in legal fees, and have long-term effects on your ability to operate. While the chances of this are low if you remain small and off the radar, why limit yourself from the start? A little investment and forethought will save you an immeasurable amount of time and money down the road. Rob Schruefer is the owner of On The Spot Detailing out of Columbia, Maryland and is a regularl columnist for Auto Detailing News. He proudly serves on the board of the International Detailing Association and works tirelessly to ensure that detailing business owners receive business development support to help them achieve their goals. 6 • SPRING 2021
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