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Duty To Search For Conflicting Trademarks?
Does the user of a name have a duty to take steps to determine whether the name infringes upon someone else's rights?
The answer to this questions is....YES. If you are using a name in connection with your business, including a domain name, trademark laws give you a duty to determine whether your use infringes upon someone else's trademark rights. If a name you are using infringes upon someone else's rights, they can sue you for trademark infringement. If you are sued for infringement, you need to be in a position to claim that the use of the name was innocent. If you have performed a trademark search (a comprehensive search is required) and found no conflicting use of the name, the results of that search are strong evidence in support of a claim that your use was innocent.
A simple search of the trademark office registrations is not good enough generally to support an innocent infringer defense. You must have taken "reasonable steps" to ascertain whether any other party has rights to a name. Keep in mind that trademark rights arise upon USE rather than REGISTRATION. So there are many parties with valid trademark rights in names that would not be uncovered by a simple search of the trademark office database.
About Trademark searches from this web page. We do not perform the trademark searches that are ordered through this web page. The links on this page are to an independent company in which we have no ownership. However, we do utilize the services of this company for trademark searches for our customers and have been extremely satisfied with the results that we have obtained. However, we are not responsible for the performance of the trademark searches and have no control over the party performing the search. We have supplied the link on this page as a service to our customers and others accessing this page.