Trademark monitoring is an important part of trademark ownership, and there are two main monitoring methods. First, a trademark owner should keep an eye on new trademark applications to see if any applied-for marks are so similar to the original that they might be confusing. Second, the trademark owner should monitor online uses of the mark, both in domain name registrations and in sponsored advertising. Monitoring can be done individually, through a commercial agent, or through a law firm.
Trademarks are registered differently in different countries, and each country with a trademark registration system has a different way of reviewing new trademarks and publicizing applications. In the United States, the Patent and Trademark Office (PTO) is in charge of reviewing and assigning trademarks. The PTO regularly publishes a registry, called the Gazette, of new applications that is publicly searchable. An important part of monitoring U.S. trademarks is a review of each Gazette for applications that are similar enough to the trademark being monitored that infringement or confusion could result.
A trademark owner who notices a possible conflict with an applied-for trademark can file a challenge and move to have the new mark canceled before it is ever awarded. Of course, studying each Gazette, discerning whether an application is likely to be problematic, and preparing a legal challenge can take significant time and resources. Many law firms and other commercial brand protection agencies offer trademark monitoring services to trademark owners that include application monitoring not only within the U.S., but around the world. For major trademarks with significant brand recognition, monitoring international applications for possible conflict is essential.
Trademark owners must also understand how their trademarks are being used online. The Internet has become one of the first places that consumers look to for information on products and services. Monitoring how a trademark is being used online—by competitors, reviewers, cyber criminals, or anyone else—is an essential part of trademark monitoring.
There are several components of a successful online monitoring scheme. First, the owner should consider if and how others are using the trademark in sponsored keyword advertising. Keyword advertising influences how search engines display links and sponsored hits. If a competitor purchases another company's trademark as a keyword, then a consumer who searches for the trademark can actually be driven to the competitor's site. Brand owners who monitor the use and sale of their trademarks as search terms can often end or reduce this practice.
Another important technique is monitoring domain name registrations. The registration of someone else’s trademark as a domain name—for instance, notmybrand.com—is known as “cybersquatting.” Cybersquatting, like keyword advertising, can divert consumers away from the trademark owner’s products. It can also harm the trademark owner’s image if a website that seems like it belongs to the trademark owner is peppered with ads, contains inappropriate content, or distributes viruses or malware.
Monitoring new domain registrations is harder than monitoring trademark applications since there is no centralized domain registration clearinghouse. Domains are registered and canceled every day, by hundreds of different domain registrars. Trademark owners can purchase a variety of software programs to help them monitor how their brands are being used online. Simple Internet searches can also help identify misuses.
Most law firms and commercial services that offer trademark application monitoring also offer online monitoring. Depending on the value of the trademark and the number of trademarks the owner has, outsourcing monitoring to a third party can be worthwhile. No matter the course taken in trademark monitoring, it is essential that the monitoring be proactive, timely, and comprehensive.