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When is the right time to get a name trademarked?

New York, NY |

I am planning on starting a company and I have a name for it. For example, say i like the name Qloud. And I want to register the company Qloud Inc and the website is qloud.com. Now, before I run into trademark issues I would like to know if its available for me to use for my industry or not.

So my question is, when should a trademark be filed? Do I register the company first and then trademark when I am ready OR do I get a trademark attorney to see if the name i want is available for my industry and poses no conflict and once cleared then register the company and then file the trademark?

I see conflicts in both, if i form the company with one name and if its taken then i have find a new name. Second, by going to a attorney without registering a name, how can he/she be trusted?

Attorney Answers 5


  1. You need to "clear the rights" in your chosen company name -- and any other trademarks such as tag lines or logos -- before you adopt them. To do that, you have to hire a trademark attorney. If you're worried that the attorney will swipe your company name then you have a lot to learn about business. But even before you settle on a company name, tag line, or logo you should discuss the matter with your trademark attorney because he or she will guide you so as to come up with a name, line, and logo that are protectable as trademarks. Not all are protectable. That attorney will also advise you on how to display the name, line, and logo in your advertising and on your website and will assist in registering them all with your state Trademark Office and/or the federal Trademark Office. In short, hire a trademark attorney licensed to practice in your state before beginning the process of branding your business.

    The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.


  2. It is cheap and easy to get a quick and dirty read on whether your mark has been registered by another. Go to the Trademark Office at uspto.gov and do a TESS search. This lists marks that have been registered as well as those applied for. If it’s there, you may need to get another mark, unless it is for some product not related to yours. If not, you should consider registering it after you have started to use it, which is generally required unless you want to file for an “intent-to-use” registration. Go to a TM lawyer. He’s not going to steal it. He sees hundreds of marks. If he stole one, you could complain to the state bar and get him suspended or even disbarred. You will also need to check whether the name is available for a domain.

    DISCLAIMER—This answer is for informational purposes only under the AVVO system, its terms and conditions. It is not intended as specific legal advice regarding your question. The answer could be different if all the facts were known. This answer does not establish an attorney client relationship. I am admitted only in California. (Bryant) Keith Martin sbbizlaw.com


  3. You can run a trademark search as suggested by my colleague. You can file an "intent to use" application or, if the mark is in commerce, a trademark applicaton. The trademark will "protect" the domain name and the company name is the least in priority. As to your last question, in 35 years of practicing law, the percentage of clients who cannot be trusted compared to attorneys who cannot be trusted is about 1000 clients per attorney, and attorneys normally have malpractice insurance and are licensed by the state, which client's aren't.

    The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.


  4. You would consult with someone like myself, explaining what your business is, etc. If I thought your trademark was no good, I'd tell you that. If I thought it had any chance of succeeding I'd order a trademark search (out of pocket cost around $700), and then after reading the search report I'd advise you whether there was any point in filing a trademark application. If we proceeded, then I'd file a trademark application for you, and we'd wait, and wait for the TM office's response.


  5. It is generally best practice to perform due diligence before starting a company or launching a new brand. It will be much more expensive to redesign your company's image (and potentially respond to a cease and desist letter or federal civil action for trademark infringement) then it will be to perform a trademark clearance search. You can do some of the leg work yourself by searching the USPTO's TESS database and the Internet generally. Beyond that, it is highly recommended to use a vendor to perform a comprehensive search. Most vendors charge between $600-700 dollars. While a skilled trademark attorney will be valuable in reviewing the search results with you, vendors will work with you directly as well. But things worth doing are worth doing right. You do not actually need to file for a trademark registration before using the mark, but you should be sure it is clear before you use it.

    You should dispel yourself of the notion that an attorney will steal your name. Your conversation with your attorney (or prospective attorney) will be privileged, and the attorney would be risking his license to steal any of that information for his own or someone else's benefit.

    The statements and views expressed in this posting are my own and do not reflect those of my law firm, are intended for general informational purposes only, and do not constitute legal advice or legal opinion. This information is intended for informational purposes only and should not be relied upon without independent consultation and evaluation by an attorney. This information does not create an attorney-client relationship. Please consult an attorney if you have any questions about the subject matter of the information above.

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