If you’ve got a disinfectant brand called “Squeaky Clean,” you might slap that name on your canisters and launch your business. It sounds clean, catchy, and on-brand. What could possibly go wrong?
In my 20 years as an intellectual property attorney, I’ve seen too many entrepreneurs pour time and money into growing a brand only to find out that someone else owns the trademark. Sometimes, it is because someone else has been using it for years, slowly building common law rights. At other times, someone has registered the mark with the USPTO, which provides immediate, actionable protection against infringements. Either way, the result is the same for the newcomer entrepreneur: expensive rebranding, legal headaches, loss of goodwill, and a decline in market share.
But it doesn’t stop there. Private equity firms and licensors routinely evaluate brand strength and protection when assessing business value. If your trademark is vulnerable or unmanaged, it’s not just a legal risk; it’s a red flag that can tank investment or licensing opportunities.
When committing to a brand name, you need to do two things: clear it and watch it.
The Clearance
The U.S. trademark system runs on a “first in time, first in right” rule. That means someone using the same or a similar mark before you, even without a registration, can have enforceable rights. Without clearance, you could end up paying someone else to stop using the brand, expending new time and money to rebrand, or paying a lawyer to untangle the whole thing in court.
A clearance search identifies potential conflicts, giving you the confidence to build your brand without fear. It’s the foundation for building long-term brand equity. It’s the seed that grows future opportunities, such as venture capital, licensing, and M&A.
The Watch
Clearing a mark is the first step. Watching it is the second, and just as important.
A trademark is only as strong as your willingness to protect it. If you don’t keep an eye on new uses of similar names, your rights can erode. Worse, you might lose them entirely.
Losing your rights in a brand you’ve been developing means losing your competitive edge. Every unchecked infringement chips away at your distinctiveness in the marketplace, diluting your presence and confusing your customers. Your brand could crumble overnight or wither away.
Not every unauthorized use is malicious. Sometimes a competitor just didn’t know you were there. Other times, they know exactly what they’re doing. Either way, the sooner you catch them, the easier it is to enforce your rights before they’ve built up brand equity that competes with your own. Competitors are often more receptive to their own rebranding if they haven’t yet invested a significant amount of time and money in their marketing.
That’s where trademark watch services come in. They alert you to potentially conflicting uses on a regular basis, giving you a window of time to respond effectively.
Try Googling “Squeaky Clean.” You’ll find maid services, car washes, and junk removers. Even Skweeky Kleen and Squeak E. Clean. Without a watch service, how would you even begin to keep track?
Whether a start-up or established business, relegating your trademark(s) will likely undermine your other efforts.
