In 2004, a Canadian teen decided to call his web design business MikeRoweSoft.com. It was his real name, but he still got a cease and desist letter from Microsoft: they thought his intention was to confuse consumers. The dispute got a lot of media attention, but it didn’t do anything good for his business, which is now gone.

Unlike Mike Rowe, you can quickly and easily improve your odds of finding a trademark that isn’t being used by possible competitors.

But first, what is a trademark? Trademarks tell consumers who the source is for goods or services. If there’s a swoosh on the side of your sneakers, you expect them to be made by Nike. Trademarks that are merely descriptive, like “Juicy Oranges” are considered weaker because many people could describe their oranges that way. 

What can you do to avoid problems? To research a name they want to use, business owners ask these 3 questions:

1. Is someone else using the same or a similar trademark?
2. Are they using the trademark for similar goods or services?
3. Do the circumstances of the proposed new use create “a likelihood of confusion among consumers?”

How can you find answers to these questions?

1. Do a web search. Search for the name you’re considering, both alone and with words that relate to your specific business. For example, if you plan to sell kitchen faucets, don’t just search “Delta” - you’ll also find the airline and math problems. What you want to know is whether “delta + faucet” shows existing uses. If you find uses that are for other products or services that aren’t similar to yours or sold in similar channels, that’s a good sign.
2. Search at USPTO.gov. A search of federal trademarks at the Patent & Trademark Office is free and gives you insight into people who were so interested in their trademark that they paid money to file or register it. So, if nothing shows up, or only uses that are not similar to your intended use, most companies consider that a very good sign.

Legal issues - like many business problems - are easier and cheaper to prevent than to fix. This is an area where the old saying is true: an ounce of prevention is worth a pound of cure.

Mike Rowe’s unfortunate decision to name his business MikeRoweSoft.com shows that while choosing a name for your business may seem like a small detail in the grand project of starting a business, not paying enough attention can cause significant problems.

So, Be Like Mike - a different Mike, Michael Jordan, whose Air Jordan collaboration with Nike didn't create any confusion about who was involved and has been remembered for many good reasons instead of a single wrong one.

By Rick Colosimo, Esq.