Trademark Infringement: What to Do If Another Business Uses Your Brand Name

I often hear a common refrain: “I've been using this name for years, and nobody’s said anything, so I’m probably fine.” I understand that logic. But eventually, I get a phone call from that same business owner, and it is rarely a happy one. Another situation companies face is where they wait too long to file an application to register their trademark, only to find out that another company (that started using the same or a similar trademark at a later date) already filed an application. Common Law Rights Only Get You So Far Using a trademark does grant what are known as common law trademark rights. The problem is that these rights are geographically limited; they only protect you in the specific market where you’ve been doing business, not across the entire country. A federal registration with the USPTO provides a presumption of nationwide priority, the right to use the ® symbol instead of just ™, and a much stronger position in case of a dispute. While waiting to register a trademark does not negate your common law rights, it does leave the door open for someone else to claim rights in that same or a similar trademark elsewhere. What This Actually Costs You Filing a federal trademark application costs a few hundred dollars per product or service. This is a small price compared to the expenses of a forced rebrand, which includes new signage, packaging, and marketing, as well as the awkward task of explaining the name change to existing customers. Additionally, legal expenses incurred from responding to cease-and-desist letters can turn into an expensive procrastination habit. There’s also a quieter cost that often goes unbudgeted: lost search rankings, decreased web traffic, and a weaker position when trying to address copycat issues online. An unregistered mark leaves you with far fewer tools for enforcement. Your Filing Date Is Your Friend Here’s an unexpected advantage: your legal priority is established on the day you file, not when you receive the registration certificate (which can take 12 months or more, given USPTO timelines). Filing locks in your position in line nationwide. Generally, everyone who files after you is already behind you, registration or no registration. Therefore, it’s legally counterproductive to say, “I’ll wait until things calm down.” Don’t Let “Later” Become “Too Late” If a trademark registration is on your to-do list alongside “organize the garage,” I recommend moving it to the top of your priority list. Filing early is cheaper, stronger, and considerably less dramatic than waiting. If you’re a business owner seeking a trademark attorney or are currently involved in a dispute, Rosenthal IP Law is a trademark law firm that handles these matters daily, including application filings, oppositions, cancellations, and everything in between. Contact Rosenthal IP Law today to schedule a consultation on registering your trademark before someone else acts first, leaving you in a weaker position.

Thinking about selling your business in the future? Whether that’s years down the line or just around the corner, it’s important to recognize that your intellectual property (IP) might be worth a lot more than you think. In fact, it’s one of the easiest things for business owners to undervalue. During the buyer’s due diligence process, IP often emerges as a key asset. What they find (or don’t find) can significantly influence the sale price. Understanding the Value of IP When people assess a business's worth, they often focus on revenue, customer lists, and physical assets. However, intellectual property should definitely be on that list, too. Think about it: a strong trademark, a solid copyright portfolio, a reliable patent, or a protected trade secret are all unique assets that a buyer can’t easily replicate. This uniqueness is what drives up the value of your business. A well-maintained IP portfolio not only demonstrates your business’s long-term potential but can also directly impact how much a buyer is willing to pay. On the flip side, if your IP is undocumented, unregistered, or unclear, it can seriously harm your business’s value. If buyers can’t verify your IP, they’re unlikely to pay for it, and in some cases, it could even derail the sale entirely. Navigating Ownership Complications One of the most common pitfalls for business owners comes right before a sale. Many assume that their business automatically owns everything it creates, like its branding and inventions. However, IP created by contractors, freelance developers, or even some employees is not guaranteed to be owned by the business unless it's clearly outlined in contracts. What Buyers Really Want During due diligence, buyers and their legal teams typically look for: Registered trademarks, patents, and copyrights that are current and properly filed. Proper and current use of trademarks. Written agreements that clearly assign IP created by contractors and employees to the business. A clear history of ownership of IP without any hidden disputes or litigation that could affect the ownership. Experts recommend that business owners start tightening up their IP documentation six to twelve months before putting their business on the market, rather than waiting until the last minute. The businesses that fare best during a sale are those that have treated their IP as a valuable asset, documented ownership clearly, and kept everything organized well in advance. A Little Preparation Goes a Long Way If you’re even slightly considering selling your IP in the coming years, now is a great time to review your IP portfolio. If patents are likely to be part of the sale down the road, it would be wise to consult a patent attorney to examine your assignment records and ownership chains before buyers start asking questions. Similarly, you should be using and protecting your trademarks properly, with clear ownership of the trademarks and their goodwill. Additionally, since copyrighted content, software, and creative assets are crucial for valuation, working with copyright law firms that understand how these assets are valued can make a big difference. Rosenthal IP LAW is here to help you set up a consultative service to protect and document your IP, ensuring it adds value to your business rather than becoming a question mark during a sale.