4 Free Things You Can Do Right Now To See If Your Trademark Is Clear

Often companies don’t think about checking to see whether a brand, logo, or tagline is legally available for use until marketing and development efforts are already underway. When a company has a limited budget, it’s tempting to postpone or forego a trademark search and focus dollars and efforts in other areas.
Unfortunately, the downside risks of using an infringing trademark in commerce are significant. A court will likely prohibit any further use of your mark, and in certain cases, you may be liable for monetary damages. You also will likely have to destroy any marketing materials, product inventory and packing that bears the infringing mark.
If you’re considering launching a new business or product, the best practice is to have a trademark lawyer assist you in (a) choosing, (b) clearing, and (c) protecting your marks. For those of you who aren’t able or choose not to do that, I have come up with four things you can do for free to help identify whether there may be conflicting trademarks out there that are already in use.
  1. Google Search. This one seems obvious. You probably have already done a Google search for your trademark before reading this. That’s natural. I’ll let you in on a deep dark secret – this is where many lawyers, paralegals and professional trademark searching firms start too. The reason is that if someone else is using a trademark in any meaningful commerce, it’s almost certainly going to show up in a Google result. (If your trademark consists of multiple words, I recommend that you put quotes around them when you search, i.e. type “Your New Brand” into the Google search bar.) If your trademark shows up in one or more Google search results, and the goods or services with which it is being used are identical or similar to yours, you can stop right there.  It’s probably time to choose a new trademark.
  2. Domain Name Search. If your Google search results were clear or even ambiguous, the next step is to check the availability of Internet domain names that match your trademark. For the sake of time and practicality, you can restrict your research to the most popular top level domains (.com, .net, .org, etc.) If someone is already using yournewbrand.com and yournewbrand.net, that doesn’t necessarily knock out the use of your mark, but it’s an issue that needs to be considered. You don’t want to spend your time and money driving customers to someone else’s website. (A distinction should be drawn here between finding that (a) yournewbrand.com is in use, meaning that a current functioning website is there, and (b) someone has registered yournewbrand.com but is not using it or is trying to sell it, etc.) As mentioned before, for trademark purposes we are most worried about websites that are using your mark in association with similar goods or services to yours.
  3. State Business Entity Search. Once you’ve gotten past steps 1 and 2, I recommend doing a search of your state’s business entity database. In most states, this is available through your state’s Secretary of State database. Our law firm works with companies that have been formed in almost every state in the US, and as of the date of writing this, I can’t call to mind any state that doesn’t allow you to do at least a company name availability search for free. In our state of North Carolina, the database search is located at https://www.sosnc.gov/search/index/corp. A popular jurisdiction for forming new companies in the US is Delaware, and that database is here: https://icis.corp.delaware.gov/Ecorp/EntitySearch/NameSearch.aspx. Note that the fact that a company exists that bears the identical name as your trademark doesn’t necessarily rule out the possibility that you could use or potent your mark, but it’s an issue that (like the domain name situation above) needs to be analyzed and addressed.
  4. USPTO Trademark Database. If you’re still with me at step 4, congratulations. Hopefully, this final do-it-yourself tip won’t break your heart. The United States Patent and Trademark Office offers several powerful methods for searching the US trademark database, and the results can often be confusing or misleading to the untrained eye. Nevertheless, it is possible for someone who is not a trademark practitioner to conduct a simple search that yields useful results. Start by going to http://tmsearch.uspto.gov/ and clicking on “Basic Word Mark Search.” On the next screen, type your trademark into the “Search Term” field and click the “Submit Query” button. If any search results appear on the next screen, click on them and check to see whether the goods and services associated with that trademark are identical or similar to yours.  As you’ve probably gathered by now, the more similarity, the more reason for concern.
Advanced tip – if you’re ambitious, repeat steps 1-4 with other similar trademarks. For example, instead of searching “Your New Brand” or yournewbrand.com, search for “Our Now Brand” or ournowbrand.com. This is a useful exercise because a trademark examiner can use similar marks as grounds for refusing your application based on a likelihood that the similarities between the two marks will create confusion.
Two final important caveats: first, the process listed above is not a substitute for having a proper trademark search conducted by a skilled trademark practitioner; and second, no amount of trademark searching by anyone can ever guarantee that a mark is registrable or will be free from claims of infringement from third parties. Nevertheless, if you want to do some work on your own to gain a good understanding of the existing landscape relative to your trademark, the steps I have outlined above should be helpful.
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