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. This is important for both word marks (that is, corporate names) and image marks (such as logos).
You wouldn't want to select a business name or logo, print brochures, run ads, develop a website, and develop a reputation only to be forced to stop using the name shortly thereafter.
What is a trademark "search"? Many businesses will hire law firms to perform comprehensive trademark searches through various electronic databases. 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 many cases, this is sufficient to find the relevant information.
To start the search, look through the trademarks registered with the U.S. Patent and Trademark Office (USPTO), the federal agency charged with maintaining the national register of trademarks. 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.
There are 45 trademark classes, which are essentially categories of marks split based on the type of the good or service. For example, furniture is Class 20, while tobacco products are Class 34. If you are marketing a new type of smoking pipe, then you would want to search for your mark within Class 34, since that is the relevant category. (If a furniture company is using a similar logo to the one you intend to use for your pipe, this is not necessarily a conflict, since the goods are in different classes. Consumers will not be confused between your two companies or products).
In addition to searching for registered trademarks on TESS, you should also do a free Internet search to see how and where the name you want is being used. Often, a simple search on Google will give you a strong sense of any major players using the mark in your industry. Alternately, you may choose to use a fee-based trademark search engine, such as Compumark.
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.
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. It's usually possible to search a state's registered businesses and trademarks through the Secretary of State's website, which may or may not also be federally registered as trademarks.
Be sure to also check one of the sites that search for trademarks registered in all 50 states if you'll be doing business in more than one state.
While you may find hundreds of similar trademarks being used across the country based upon your various searches, you will need to know how to sort through your results and determine which trademarks you are really prevented from using.
For instance, if another company is using the same or a similar name 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.
Remember that the time and cost you put into a trademark search should be proportional to the size and scope of your business. A multinational company that intends to market a consumer product needs to be very thorough; a small mom-and-pop shop that wants to name a new kind of salad dressing for sale locally need not break the bank on trademark searches.
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.
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