Introduction by Joseph Aquilina, Vice President & Deputy General Counsel, Consumer Brands Association

“While 2025 may be continuing the era of unprecedented times with all that CPG brands face on a range of policy and regulatory uncertainty, core business and legal issues need to remain a top priority with launching new products and bolstering the strength of existing brands. Brand integrity, in particular, continues to be important for both safeguarding company reputation as well as intellectual property (IP) in the marketplace. In this article, CPG Legal Forum Executive Partner Faegre Drinker explores top questions and quick at-a-glance answers to assess whether a trademark is available and protectable and determine how much investment is warranted.”

Most in-house counsel periodically encounter branding questions — and the business team wants answers … yesterday! To give you a head start, this article discusses key branding questions that companies frequently face and provides a roadmap for addressing it.

Can I Trademark/Patent/Copyright This Name?

Let’s find out!

For starters, let’s clarify. This common intellectual property (IP) inquiry relates to trademarks — words and symbols that identify your company’s products and services, distinguishing them from competitors’ products and services.  In contrast, patents protect inventions, and copyright law protects original works of authorship like photos, books and musical compositions.

When the business team wants to know whether they can use a new trademark, consider asking them the following questions. Their answers will build a foundation for you and your IP counsel to assess whether a trademark is available and protectable and determine how much investment is warranted.

1. Do you mean, (a): can we use this name without risk of third-party objections; (b) can we stop competitors from using this name; (c) can we register this name with the Trademark Office; or (d) all of the above?

This question aims to clarify the business team’s objectives and to assess whether a trademark search will suffice and/or if trademark registrations are desired.

2. Have we used any version of this name before? If so, since what date? Was our use of the name ever interrupted, and if so, for how long?

The team’s answer will help you assess whether a trademark search is necessary and whether your company can claim rights in the name already.

3. Is the name a term of art, or does it have any other significance in our industry?

This question speaks to whether the name is registrable or whether the name is so descriptive or generic that it is free for everyone to use.

4. Is the name an acronym, and if so, what does it stand for?

The team’s response will inform trademark search efforts; it may be advisable to conduct a search for the spelled-out version of the name.

5. When do you plan to launch the name?

The launch timing will dictate how quickly any searches must be conducted and how soon trademark applications should be filed and will also help you gauge whether a U.S. trademark application can remain in force until launch.

6. Have you or a marketing agency run any informal cursory trademark searches or internet searches for the proposed name? If so, please share the results with me.

While deeper, formal trademark searches are usually recommended, informal searches sometimes identify fatal obstacles to use and registration of names. Knowing the results of informal searches may help you eliminate unavailable names early in the process.

7. Will this name be difficult, time-consuming and costly to change if someone objects to our use or registration of the name? How quickly and inexpensively could the name be phased out?

This question will guide a decision as to whether a deep-dive trademark search is necessary and can help you develop backup plans. Note: It can be challenging and time-consuming to change names requiring regulatory approval, so extra caution is often warranted under those circumstances.

8. Was the name inspired by any competitors’ brands, and if so, which?

You’re hoping for a “no” answer here, in an effort to avoid trademark infringement accusations.

9. What product or service will this name identify?

It’s important to get these details to increase the precision of any trademark searches and to fulfill trademark application requirements.

10. Will this product or service have a long lifespan?

If the name will only be used for a short time, registration may not be worthwhile.

11. In what geographical areas will we use this name?

You will want to know where any trademark searches should be conducted and where any trademark applications should be filed (e.g., certain states, throughout the U.S., in other countries).

12. How important will this name be, overall? Is this a “crown jewel” brand, or is it less important?

The response will dictate how much to invest in searches and trademark applications.

13. Who designed the logo?

If the designer is a full-time employee of your company, that’s great — the company probably already owns the rights.  Alternatively, find out if there is a written agreement with an external creator specifying who owns the rights — and if not, draft one.

14. Will the logo always appear in the same format and color?

You’ll need this information before you file trademark applications.

15. Will you need to register a domain name that incorporates the new name?

If so, your company will need to look into whether a desired domain name is available at a price that is within your budget.

Obtaining the above answers during early discussions with your business team will save considerable time and effort (and reduce the risk of unpleasant surprises) in the long run. The payoff? A brand that can live forever. Feel free to send any questions our way. Happy branding!