Why do I need an attorney clearance letter?
A clearance letter details the steps undertaken by a trademark attorney to search a subject mark and the attorney’s analysis of the existing trademarks disclosed by a trademark search report. Such a clearance letter should be based on a good faith request for legal advice by a client. A client who withholds information from an attorney concerning an existing third party trademark with the bad faith intent to infringe on that mark may not be able to inoculate him or herself from a finding of bad faith with an attorney opinion letter. A trademark search report from an independent third party provider is also a prerequisite to drafting a clearance letter. Most trademark attorneys will not clear a trademark based on a knockout search, alone. A clearance or opinion letter should contain the trademark attorney’s detailed analysis of what potentially confusing trademarks may exist, and why any such trademarks would not be infringed by the proposed mark.
A party who relies on a clearance letter in good faith is far less likely to be found liable for willful infringement of a pre-existing trademark. A finding of willful infringement may give rise under the Lanham Act to an award of treble damages and disgorgement of any profits earned in connection with the infringing mark. In certain jurisdictions, not only does good faith reliance on a properly drafted and supported clearance letter preclude an award of treble damages, but bars the plaintiff from receiving disgorgement of profits. Accordingly, in most cases, it makes business sense to have a trademark attorney order and review a full trademark report, and draft a clearance letter.
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