How to Purchase an Existing Trademark

How to Purchase an Existing Trademark

by Joe Runge, Esq., May 2020

Sometimes the shortest path to trademark success is to buy one. Purchasing an existing trademark requires detailed knowledge of what you're looking for, a shrewd way to evaluate what's available, and a keen sense of when to get a bargain.

How to Purchase an Existing Trademark

Before you start the process, it's important to examine the potential advantages and drawbacks.

Pros and Cons of Purchasing an Existing Trademark

Patents protect inventions. Copyrights protect expressive works. Trademarks are a bit more complex.

A trademark protects the goodwill that customers have with a provider of goods or services. It's not simply the brand or the logo but rather the overall feel of the trademark and how it helps customers identify who produces what.

The biggest drawback to buying an existing trademark is that it can be difficult to find one that already reflects the relationship you're trying to build with your customers. On the flip side, if you can find and successfully purchase one, you'll have the immediate availability of rights you can assert against your competitors. Instead of building the perfect custom suit to fit your business, you can buy one straight off the rack.

To ensure a good fit, first, consider how important the trademark is to your business. Are you looking to create a franchise business that exists on licensing bulletproof trademarks? If so, putting in the work of building a mark from scratch might make sense. But if you're adding a new, speculative product that quickly needs to gain market traction in a competitive market, buying an off-the-rack trademark could be the better way to go.

Purchasing an Existing Trademark

If, after weighing the pros and cons, you determine that purchasing an existing trademark is the way to go, follow these steps:

1. Know what you want. Trademarks registered with the United States Patent and Trademark Office (USPTO) are categorized by their market, such as food, clothes, and services, so start by checking the USPTO database by the category you're interested in. You can also hire a third-party to conduct a trademark search for you.

2. Be your customers: find a trademark. Goodwill is an abstract notion, but your customers are not. When shopping for a trademark, put yourself in the shoes of your clients. Does the mark build the relationship you want with them? It's an important consideration because if you don't have a firm grasp on your business case, you'll never know if the trademark you find is right for your business.

Maybe that relationship is simple, such as building a brand for locally roasted coffee. Or perhaps it's more complicated. You may want to be known as "the mindful divorce lawyer who focuses on your mental health during a trying time." Whatever it is, if you're going to consider buying a trademark, then it needs to reflect the relationship you want with your customers—or get close enough.

3. Seal the deal. You now know what you're looking for and have found a trademark that fits the bill. What is it worth?

Intellectual property is still property, whose worth is a combination of its scope and location. When it comes to actually buying the mark, you have options. You can pay to have the owner assign the trademark to you and own it outright, or you can license some or all of the rights.

If purchasing an existing trademark is proving expensive, consider purchasing a dead trademark or one on the verge of abandonment. Find one by searching the USPTO's Trademark Electronic Search System (TESS). At the very least, you'll know the mark is worth less to the owner than the cost of maintaining it.

Purchasing an existing trademark can save you time and money—but only if it's the right fit. If you don't find an existing trademark that suits your needs, you may then need to consider registering a new trademark of your own.