Recently a suit was filed against Microsoft based on the name of its Bing search engine for trademark infringement and other bases. The complaint was recently filed, so a lot of information is not yet available. However, useful information for trademark and brand planning for startups can be gleaned from the news articles, court filings, and USPTO records, and company websites.
The complainant, Bing Information Design, calls itself a design firm on its website. It’s trademark application states that “Bing!” has been used in connection with services including, in part, advertising and design services, advertising via the internet, and promoting the goods and services of others. Microsoft’s trademark application seeks to use “Bing” in connection with advertising services, dissemination of advertising for others via the Internet, promoting the goods and services of others, and other products/services. The “Bing” and “Bing!” marks are similar and the services seem to overlap. There are multitude of other factors in determining trademark infringement, but at first glance the lawsuit does not seem baseless, even if the court holds that Microsoft did not infringe Bing Information Design’s mark.
It is hard to say what will be the outcome of the lawsuit based on the current (and future) information. However, from a startup’s perspective (or others launching a brand name), this article should highlight a couple of issues:
- Before launching a brand name, perform as thorough a search as possible. Proactively searching can minimize later problems. It is usually preferable to know about a similar mark before spending time and money creating the goodwill associated with a mark. Also, Bing Information Design had not applied to register the “Bing!” mark and had not registered bing.com, thus a brief level search may not have located its presence.
- Be open to multiple possible brand names. Microsoft has stated that its believes the lawsuit is without merit and that it does not believe there is any confusion in the marketplace. However, assume for a moment that a startup (with a smaller budget than Microsoft) is seeking to use “Bing” as a mark in connection with a search engine that generates revenue from advertising. And assume further that the startup knows of another company using the name “Bing” in connection with providing advertising services. Even though it is an ambiguous situation, it may be prudent to uses a different mark. Microsoft would surely survive such a situation, but that startup may not be able to survive the lost employee time and money involved in a potential lawsuit.