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Q.What if I don't have a trademark search performed?
A.Failure to have a proper trademark search conducted before using a name, or filing either an in-use, or "intent to use", trademark application can have severe consequences. First, if use occurs prior to a proper search being conducted, a trademark owner with prior rights in and to the mark you began using may require you to immediately cease using of the mark, destroy all paper, advertising materials, and products containing the mark, and potentially sue for monetary damages such as lost profits, as well as other statutory damages for Willful Infringement which includes attorneys fees and costs and treble damages. The courts have considered failure to have a search conducted to be a factor in finding "Willful Infringement". If you are merely filing an "Intent to Use" application, and the use of the mark has not commenced, one may argue that the liability is minimal because without actual use of the mark there are no profits. However, various courts have found such defendants liable for "Willful Infringement" on the ground that they intentionally ignored the advice of counsel who recommended a trademark search be conducted.
We strongly suggest that prior to using a name you plan to associate with your goods and/or services that you consult with an attorney to have a proper trademark search conducted and written opinion rendered on the feasibility of using the name you have selected.
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