Typically, a company with a new product hires a trademark search company to report on whether its new product name is likely to infringe. That’s probably overkill for most bloggers, small business owners, and app or website developers.
Most likely, you can do a fairly reliable search by reviewing the products or services offered within your industry (usually accomplished on the Internet), and then following that up with a search of the U.S. Patent and Trademark Office database.
For example, if you were a developer of mobile apps, you could start your search at the app stores and follow that with a search of the software categories at online retailers such as Amazon. That should give you a general idea whether your name is likely to be confused with another product. If you’re a blogger, you can search Blogspot and the online blog aggregators. If you’re an ecommerce business, then just plug the name into Google along with the relevant goods (for example, “Exclaim” and tutoring services).
In all of these searches, you want to go as “broad” as possible. For example, if you’re an app developer, you need to consider all software products because that is the class within which you might register and also because a trademark owner acquires rights not just for its goods but also for goods and services that it is reasonably likely to offer. For example, it might be expected that an online game would be ported to the iPhone.
Look for Variations
Finally, your search should locate substantially similar variations on the mark. For example, if a popular blogger is using the named DogMan for writing about and promoting various dog photographers, he would need to search for that name as well as soundalikes (“Dawgman”), plurals (“DogMen”), gender variations (“DogWoman”) and perhaps foreign translations.
If A Similar Mark is Already in Use
If a search determines that the desired mark or a substantially similar mark is already in use, you may want to rethink your choice of mark. Frustrating though this is, it’s better than closing your eyes to the competition and hoping for the best. Failure to search—or to act on what you discovered in a search—can have expensive consequences. If you rush to publish and promote a name while a similar trademark is already being used by a competitor, the competitor may obtain a court order preventing your use of the trademark, and you may also have to pay monetary damages and attorney fees. Of course, there are other factors involved such as:
- How long has the competitor used the mark? The longer the use, the more str
- Is the competitor’s mark protectable under trademark law? Review trademark basics to determine if the mark can be protected
- How well known is the competitor’s mark? The more well-known the mark, the better the chances that the competitor will care about your use.
The most economical method of searching is to start with a preliminary search on the Internet using Google and following that up with a search of the USPTO database (on the USPTO homepage, click Trademarks, then click Search). The video, above, explains some of the basics. If the preliminary search turns up similar marks, you can then narrow your choices before proceeding to a professional search report.
If your preliminary search does not turn up any similar marks (referred to as “potential conflicts”), you can, if you wish, hire a professional search firm to prepare a complete report of any similar federal, state, common law or, if desired, international trademarks. These searches are expensive (often $300-$500) and we would suggest bypassing the professional search unless you are either entering into a licensing agreement or distribution agreement in which you must promise your trademark does not infringe, or your mobile app products are becoming successful and you need the peace of mind that comes with knowing you are not infringing any existing marks.
Learn more about registering your blog's name as a trademark.