According to Shakespeare, "a rose by any other name would smell as sweet."  Unfortunately, this is rarely true with modern consumer products.  A product needs a name.  More importantly, the name on the label, maybe even the label design itself, needs to be registered as a trademark.

The brand protection process begins by selecting a suitable name for the product.  This can be a surprisingly challenging step. Even if one chooses an arbitrary name, as opposed to a descriptive name, one must initiate a clearance search to make sure the name is available and does not interfere with the rights of existing trademark owners.

Searching potential trademarks can be a very difficult task, and is as much art as science.  You can do some searching yourself using online databases such as the one maintained by the U.S. Patent and Trademark Office and similar databases at the state level.  However, once your proposed name is chosen, a comprehensive search must be conducted by a trademark professional.  Anything short of that is asking for trouble. 

A number of factors contribute to the complexity of locating and analyzing potential conflicts.  First, products are typically sold nationwide, and often internationally.  This means potentially conflicting marks in all 50 states and numerous foreign countries must be checked and evaluated.  Second, unlike the rest of the world, where marks generally must be registered to be valid, the United States recognizes common-law rights based merely on use.  Locating unregistered users can be a daunting task, but a comprehensive trademark search goes a long way toward identifying potential pitfalls.

A comprehensive trademark search will include the digital common law to identify existing uses of the potential mark on the Internet, as well as comprehensive databases of company names and marks.  Search reports are not 100 percent reliable in identifying potential conflicts, but they are your best insurance against future troubles.

Trademarks traditionally protect against the use of a mark on identical or "related" goods.  However, owners of famous and distinctive marks have encouraged dozens of states and the federal government to adopt "anti-dilution" statutes that protect marks from "dilution" through use on noncompeting or unrelated products or services, especially if the mark is both distinctive and famous.

The process for protecting trademarks abroad is becoming increasing streamlined.  For example, when protecting a mark for use in much of Europe, Asia, and Australia, U.S. trademark owners can use the Madrid Protocol to obtain protection in more than 60 countries by claiming priority to a single trademark application filed in the United States.  In addition, a European Community trademark application can obtain protection for a mark throughout the European Union.  In Canada, South America and Africa, however, the country-by-country application process remains the only means for obtaining trademark protection.

Failure to properly clear and protect your brand can result in your company being enjoined from selling your product, as well as infringement damages, attorneys' fees and court costs.  Savvy brand owners select arbitrary or distinctive names, clear them for use and register them.  Preventing your brand from being exposed to trouble down the road will be time and money well spent.