If you are working on any type of new creative to support the launch of a new brand for one of your clients you should always conduct a clearance search, but what is a clearance search?
A trade mark clearance search is the process that gathers and assesses all the relevant information relating to your new mark so you and your client can effectively evaluate whether your proposed brand is a) available and b) protectable.
Only a clearance search can ensure you do not proceed to launch using materials that are likely to conflict with anything that already exists.
During the search, a trade mark expert will review your proposed new brand against what is currently under registration in the UK, European and/or relevant international trade mark registers.
The results will determine if your proposed brand is unique enough to be launched. The results will also allow you to assess how strong or, conversely, how vulnerable your brand would be in the markets and territories you have targeted.
WHY SHOULD YOU CONDUCT A TRADE MARK CLEARANCE SEARCH?
Admittedly a clearance search isn't strictly speaking a legal requirement. It is, however, a simple process that can prevent a great deal of time, expense, stress and possible reputational damage further down the line. It will highlight whether or not your new brand will infringe any existing brands and, by extension, could lead you into a legal dispute.
Alternatively, if the results are a little open ended, your clearance search will provide an assessment of any underlying or potential risks so you can make a more informed decision as to whether you should proceed.
One question we are all too often asked is just how likely it is that a company will begin legal action if they feel their brand has been infringed. Given how tough the trading environment is and how competitive every market has now become, legal action is unfortunately a very realistic possibility and therefore one you need to insulate your clients against.
In some - although increasingly rare - cases you may be able to reach a mutually acceptable agreement as to how both your client and the other party can use their respective brands. This process will however still incur time and expense (especially if compensation was required). If the launch had already gone public, it could also cause your client no little embarrassment and potentially impact sales as a result.
The real damage will be done if legal action is taken.
Simply responding to a Cease & Desist letter typically costs upwards of £2,000. If it goes further, the cost of defending an alleged trade mark infringement can easily pass £10,000 depending on the complexity of the case.
WHAT ARE THE DIFFERENT TYPES OF CLEARANCE SEARCHES?
The type of search you need will depend on your client's product or service, business plan and commercial objectives. So that you get exactly what you need for each client, we offer a range of search options for new brand names:
The identical search
This is an initial screening search designed to help you narrow down your list of possible brands. The results will give you a clear indication of which proposed marks are realistic options (and which should be dropped) without you incurring the cost of a full search.
The full clearance search and risk assessment
This is the most comprehensive search and will provide you with a full assessment of the risk in using the mark of interest.
The brand refresh
If you are thinking about a brand refresh, you need find out how you can tweak your branding and/or whether your new identity will either impact your existing protection or require a new trade mark altogether.
The overseas clearance
Trade marks are territorial rights, so conducting a clearance search in the UK will not give you any indication of whether a trade mark is free to use abroad. If you plan to use your brand abroad, you will need to carry out similar clearance searches in the relevant countries to make sure you have freedom to use your new brand there too.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.