Before you print the sign: trademark searches and the IP pitfalls that trip up new businesses

Most small businesses spend more time picking a name and a logo than almost anything else at launch. They file the LLC, buy the domain, print the shirts, build the website, and start posting. Then a letter arrives from someone who was using the name first, and the business has to choose between a fight it cannot afford and a rebrand it did not budget for.

That outcome is almost always avoidable. A proper trademark search, and a few hours spent thinking through your intellectual property before you launch, costs a fraction of a forced rebrand.

The myth: “The state approved my name, so it’s mine”

It is not. When you form an LLC or corporation, the Texas Secretary of State checks only that your name is distinguishable from other Texas entity names on file, and for an assumed name certificate it does not check for conflicts at all. Neither filing involves a trademark search, and the Secretary of State itself warns that filing a name does not give you the right to use it against someone else’s rights. Buying a domain name or claiming a social media handle does not create trademark rights either.

Trademark rights come from using a name, logo, or slogan to identify your goods or services, and they belong to whoever used the mark first in a given market, or registered it first federally. Someone in another city who has been using your name for years may have rights that block yours, whether or not they ever filed anything.

What a proper trademark search looks like

1. Start with a strong name. Trademarks run on a spectrum. Made-up and arbitrary names (“Kodak,” or “Apple” for computers) are strongest. Suggestive names are good. Descriptive names (“Leander Plumbing”) are weak and hard to register, and generic terms cannot be protected at all. The most common mistake is choosing a name that describes the business, then discovering nobody can own it, including you.
2. A knockout search. A quick screen of the USPTO’s federal records, Texas registrations, and an internet search to rule out obvious conflicts before you fall in love with a name.
3. A full clearance search. For a name you plan to build on, a deeper search of federal and state registrations and pending applications, common-law uses on the web, marketplaces, social media, business directories, and domain names, including similar spellings, sound-alikes, translations, and similar logos.
4. The analysis. This is the part that needs a lawyer. The question is not whether an identical name exists. It is whether consumers are likely to be confused, which turns on how similar the marks look, sound, and mean, how related the goods and services are, how they are sold, and how strong the earlier mark is. A search report without that analysis is a list, not an answer.
5. A decision and a plan. Clear to use, use with changes, or pick another name, and whether and where to register.

Registering the mark

• Federal registration with the USPTO gives nationwide priority from your filing date, the right to use the ® symbol, a legal presumption that you own the mark, and, after five years of continuous use, protection against many challenges. Filing fees start at $350 per class of goods or services, with surcharges for incomplete applications or custom descriptions. You can file before you launch, based on a bona fide intent to use the mark.
• Texas registration through the Secretary of State is less expensive and covers Texas only. It can make sense for a truly local business.
• Watch for scams. After you file, expect official-looking letters and emails offering to “register,” “monitor,” or “publish” your mark for a fee. The USPTO warns about them. Most are not from the government.

The other IP pitfalls new businesses walk into

• You may not own your own logo. If a freelance designer created it, the designer generally owns the copyright unless you have a signed written assignment. The same is true for website code, photos, and copy. Every contractor agreement should assign the IP to your business.
• AI-generated names and logos. AI tools can suggest a name that is already in use, and courts have held that copyright requires human authorship, so a logo generated entirely by AI may not be protectable by copyright. Trademark rights in a name or logo still come from use, but clear it first. See starting a side hustle in the age of AI.
• Founders and employees. IP created before the company existed, or by an employee outside the scope of their job, may not belong to the company without a written assignment. Investors and buyers will ask.
• Your day job. An invention or product built on your employer’s time or equipment, or within your employer’s line of business, may belong to your employer under an invention assignment agreement. Check before you launch. See non-competes and trade secrets.
• Trade secrets. Recipes, customer lists, pricing, and processes can be protected as trade secrets under Texas law, but only if you take reasonable steps to keep them secret, such as confidentiality agreements, access limits, and marking.
• Copyright registration. You own copyright in original work you create, but you generally must register a U.S. work before you can sue to enforce it, so register what matters.
• Domain names. Someone who registers your mark as a domain in bad faith to profit from it may be liable for cybersquatting, and there are fast administrative procedures to recover a domain.

Patents and freedom to operate: when you need a referral

Patents are different. Preparing and prosecuting a patent application before the USPTO requires a registered patent attorney or agent, who must have a technical background and pass a separate patent bar exam. Two kinds of patent work, in particular, call for that specialized counsel:

• A patentability search, which asks whether your invention is new and non-obvious enough to patent.
• A freedom-to-operate analysis, which asks whether your product would infringe someone else’s patents in the markets where you plan to sell. It is a detailed legal opinion, claim by claim, and for a product business it can be one of the most important pieces of legal work it ever buys.

Crawford Law will refer you to a registered patent practitioner for those. Before you talk to one, do one thing: do not publicly disclose your invention. U.S. law gives inventors a one-year grace period after their own disclosure, but many other countries do not, and a premature pitch, post, or sale can cost you patent rights abroad. A provisional patent application can hold your place for twelve months while you develop the idea.

How Crawford Law can help

Crawford Law is happy to help with a proper trademark search: helping you choose a strong name, reviewing knockout and full clearance search results, giving you a clear read on the risk, and preparing federal or Texas trademark applications. The firm can also help with the IP that goes with forming a business: contractor and employee IP assignments, confidentiality agreements and trade secret practices, copyright registrations for key works, and a check of your new venture against your current employment agreements.

A true patent search or freedom-to-operate analysis requires a referral to a registered patent practitioner, and the firm will help you find one. Most of all, Crawford Law can help your business avoid these pitfalls by thinking through the issues properly before you launch, when fixing them is cheap. See the business practice, or request a free call.