If you are a trademark owner did you know that to maintain rights in your mark you are required to police the use thereof? Unauthorized use of your mark, also known as infringement, diminishes the distinctiveness of a trademark and, correspondingly, reduces your rights in your trademark by diluting it in the marketplace for relevant consumers. In short, the more trademarks there are out there that look like your mark, the less likely your trademark will be viewed by consumers as an identifier of the source your goods or services. Whether you have a Trademark Registration or not here are 4 things every trademark owner should know about Monitoring use others are not infringing thereon:
The United States Patent and Trademark Office ("USPTO") maintains a moderately user-friendly web site located at USPTO.gov. There users can search the USPTO's records of pending and registered trademarks using the Trademark Electronic Search System ("TESS"). For individuals not trained in the more advanced techniques of searching the USPTO's databases, use of the "New User Form Search (Basic)" is the most user-friendly. Although it may not bring up all of the results that a "Free Form Search (Advanced)" may (e.g., phonetic equivalents (Coco Cola vs. Koka Kola) or foreign translation equivalents (Red Shoes vs. Zapatos Rojos), it is a nevertheless a great, basic, and cost-effective (i.e., free) manner to monitor filings before the USPTO to make sure others are attempting to register trademarks too similar to yours.
Monitoring your trademark(s) on the USPTO will only pick up a fraction of the trademarks that are actually out there and in use. Many entities and/or individuals never file to register trademarks that they are using with the USPTO. As such, to expand your view of trademarks that are actually in use in commerce you should also examine trademarks in use in cyberspace. In short, monitoring of your trademarks should include regular checks of the major search engines to make sure others, and in particular your competition, have not adopted or are using trademarks similar to yours. There are far too many search engines out there to mention and repeatedly search them all. However, for the purposes of this article we suggest routine searches of the three biggest in the U.S.: Google (@45% of search traffic in the U.S.); Yahoo! (@21%); and Bing (@12%).
Sponsored Ads and Html Code
Checks should also be conducted to make sure a search of your trademark(s) do not bring up competitor's sponsored ads (i.e., pay-per-click advertising) which may indicate that your competitors are bidding on your trademark as a keyword. Moreover, if a competitor and its dissimilar mark ranks highly in non-sponsored or organic search results when you search for your trademark you should examine their html code for their web site to make sure they have not embedded your mark in their html code so that their site appears in search results when consumers are seeking you out online.
Of note, if you do not wish to spend your days fixated searching the Internet for wrongful use of your marks try Google Alerts. Google Alerts allow you to set alerts, delivered via email as frequently as you choose, for any term or combination of terms when Google's discovers while performing its routine indexing of pages posted on the Internet. It's a great low-maintenance tool to monitor use of your mark, or wrongful use thereof, on the Internet. Note, it will not alert you to the pay-per-click or html issues referenced above.
RSS Feeds & Twitter
Another way to monitor the use of your trademarks online is to follow RSS feeds of relevant blogs and other information in your industry as well as monitoring the use of your trademarks on social media sites like Twitter. To do this simply identify the most relevant blogs in your industry and monitor them for use of marks similar to yours by subscribing to RSS feeds for these blogs. Additionally, you can set search terms in Twitter and have the same downloaded to your RSS feed as an extra level of protection.
State Trademark and Corporate Databases
One final level of monitoring you may wish to undertake is the monitoring of state trademark and corporate databases for filings of new business names or state trademarks which may infringe upon your rights. The good news is that almost every state has an online portal where you can search for business and state trademark filings for free. The bad news, the state web sites are not linked and to search every state's databases on a routine basis would be quite time consuming.