How to Do a Trademark Search Before Choosing a Business or Product Name

A trademark search can help ensure your business or product name is available, and that you will not discover a conflict after you invest into advertising.

Choosing a name for your business or product? Doing a trademark search is important for determining whether another business is already using a trademark that's identical or similar to the business or product name you want to use. You wouldn't want to select a business name, print up brochures, run ads, develop a website, and develop a reputation only to be forced to stop using the name.

National Trademark Searches

Many businesses will hire law firms to perform comprehensive trademark searches. Depending on the type of mark (a word mark or an image mark) and its complexity, such a search can cost several thousand dollars. However, you can do a basic trademark search on your own without the need for lawyers. In most cases, this is sufficient.

To start the search, look through the trademarks registered with the U.S. Patent and Trademark Office (USPTO). The USPTO's Trademark Electronic Search System, known as TESS, is freely available and can show you what marks have been registered in what trademark classes.

In addition to searching for registered trademarks, you should also do an Internet search to see how and where the name you want is being used. Alternately, you may choose to use a fee-based trademark search engine, such as Thomson's SAEGIS database.

You can also search domain names being used by Web-based businesses at any domain name registrar. There's a list of domain name registrars at ICANN.org, the large nonprofit organization that administers Internet governance regulations and URL registrations.

Searching for unregistered trademarks is important because, even if a trademark is unregistered, its existence could prevent you from registering the trademark in your own name or from even using the trademark legally. And you do not want to violate someone else's trademark rights, especially if the trademark has been federally registered. In that case, a court can assume you knew it was federally registered, even if you did not, and you could have to pay the trademark owner's attorney fees as well as damages.

State Trademark Registries

In addition to checking for federally registered trademarks at the USPTO's website, it is also a good idea to check your state's trademark database. The state trademark database is often part of the Secretary of State's office, though in some states it has a department of its own.

You can also check one of several sites that search for trademarks registered in all 50 states, such as Thomson's SAEGIS service. This is an especially good idea if you'll be doing business in more than one state.

Analyzing the Search Results

While you may find hundreds of similar trademarks being used across the country, you will need to know how to sort through your search results and determine which trademarks you are prevented from using.

For instance, if another company is using the same or a similar name with which to market different products and services, it may be fine for you to use the name for your business. But if another company is using the same or a similar name to market similar services in a different part of the country, it's less clear. For help in determining whether you can or can't use a trademark, see Nolo's Trademark: Legal Care for Your Business & Product Name, by Stephen Fishman.

If you decide to work with an attorney when doing a trademark search, you will also get a legal opinion as to whether your proposed mark is legally safe to use. For help finding an attorney, see Nolo's Lawyer Directory or the article How to Find an Excellent Lawyer.

If you are ready to apply for trademark protection, Nolo can file a trademark application on your behalf. Our online interactive program gathers all the information needed to create your trademark filing, with practical help at each step.

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