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Trademarks something to think about.

Posted by: Robert Markette
September 13, 2006

Something you may not think about much in your agency or hospice is trademark law.   One reason you should consider it is your company’s name.  When you organized or incorporated, you chose a company name.  Part of that process involved you or your attorney checking with your state’s secretary of state’s office to determine if the name you desired was available.  If it was, you most likely went forward with organizing.  If it was not, you had to pick a new name.

One thing you may not have considered is the use of your company’s name or part of the name by another company in your state or another state.  If you did not check before filing, it is possible that your secretary of state approved your name, even if it was very similar to another company’s name.  Even if that did not happen, you may still find yourself using a name another company claims.

Many companies have registered their corporate name as a trademark or service mark.  (See for example Volkswagen, Chevy, Ford, etc.)  Not surprisingly, a number of smaller companies do the same thing.  If your name conflicts with another company and that company is claiming you are violating a trademark or service mark, you may be in for a headache, even if you ultimately get to keep the name.

The first thing to know is that it is the date of first use of the claimed trademark that determines whose right to use the mark in question is superior.  If you used the name first, you have a defense.  There are other defenses to such a claim, however, once you receive the cease and desist letter, you are going to be spending money in attorney’s fees to defend yourself.  If you lose in a case like this, you can be ordered to change your company’s name.  

I point all of this out to suggest, at least for those of you starting up, it is worthwhile to check to see if the name you are intending to use for your agency contains any part of a registered trademark.  For those of you who have been in business for a while and developed an “identity” part of which is your name or any logos etc., it is worth considering registering these marks.  Again, it is your use of the mark that creates your rights in the mark, but registering them with the Patent and Trademark office creates a number of additional procedural protections for you.

         

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