How to Check Trademark Availability: Protecting Your Brand Today So That Your Business Will Thrive Tomorrow. So that you are able to legally take care of your brand, you will be trademarking your business name, product name, or service name. Yes, you will have to search and check if it is available, but… And then no one ever gets a chance to utilise it when you will need it. It can’t be helped because if brand mark registration is done, court cases, brand confusion, and revenue wastage will occur. And in today’s blog we are going to study how availability search works in a trademark, why quality search is necessary, and we will give you the procedure.
What is a trademark?
A trademark is a phrase, word, symbol, or term used to refer to the origin of goods and services. Your company is identified by a trademark from companies and can be put into the marketplace. Trademarks are safeguards that prevent copying a mark and misleading people or watering down the brand.
Why Is It Important to Check for Trademark Availability?
Cross-check confirmation whether it can be used or otherwise is conducted prior to trademark registration. In the given situation, in the event of a registered trademark, an end-court case would exist in the event that dissensus would have entailed its refusal of registration or otherwise in your case scenario wherein you would have to trademark your corporation afresh. Exhaustive trademark search is for:
- Avoid Conflicts with Existing Trademarks: You would not be infringing another person’s mark in a trademark if you search.
- Save Time and Money: You would be exposing yourself to attorney fee inconvenience and delay if you proceed and obtain an infringement mark registration. Searching avoids such delay.
- Ensure Brand Protection: You not only trademark your brand but also reserve the right of pre-emption to sole use of your application to use your product or service brand name, logo, or slogan.
Step-by-step Procedure on How to Know Trademark Availability or Not
There is no right machinery and infrastructure by which you can determine whether a trademark exists or not. The second step will lead you to that destination.
1. Search the U.S. Patent and Trademark Office (USPTO) Database
Because you are based in the US, you would make your search firstly in the database of USPTO so that you would become aware if your trademark is free or not. All pending marks and all searches of use and nonuser registered marks would be available in its database. After that, it’s how you need to proceed:
Step 1: Visit the USPTO website and select the Trademark Electronic Search System (TESS).
Step 2: Select Basic Word Mark Search or Advanced Search and search for your mark. Basic can be used for ordinary search; one can use advanced search for particular searches.
Step 3: Enter your proposed mark and pull result. Search for something similar or the same as your proposed mark, i.e., the same class of goods or services.
Step 4: After getting any against marks, check their status (registered, pending, or abandoned) such that you would know if they are available or not.
Step 5: And if your mark, which you wish to be a trademark, is already present, then don’t worry, and you can complete the process of a registration of a trademark. If there arises any kind of dispute, then you have to abandon your mark or modify your mark in some or other manner so that you will never infringe on them.
2. Search Other Trademark Databases
Though simple to do, searching out of the USPTO database while travelling within the United States is foreign database available while being abroad on business. And finally, searching in any one of the following full trademark databases:
- European Union Intellectual Property Office (EUIPO): European Union Marks.
- World Intellectual Property Organisation (WIPO): International Madrid Protocol registration.
Yes, National Trademark Databases: Nations also maintain national trademark databases, and you can enquire if they possess databases in your jurisdictions.
3. Use Online Trademark Search Tools
Apart from government trademark databases, there are not many web trademark search tools where you can verify availability. Web tools scrape other trademark databases just because no time is wasted in investing effort and time. Some of the best-selling top web tools are:
- Trademarkia: Trademarkia is an excellent website where you not only search more than 100 world trademark databases but also get readable reports to assist you in resolving conflicts.
- CompuMark: It is computer software that provides you with a full range of full solutions for the trademark search. It provides you with full availability and potential conflict reports of the marks.
- NameRobot: NameRobot is also a software program that has an availability feature for trademark search and a business name generator feature.
4. Do a Common Law Search
Apart from the fact that he is the owner of a live file or database of marks on which the mark is in use with the USPTO, then common law will then apply and envelop them.
It even claims that the trademark could claim exclusive rights under trademark use of commerce despite not being the registered default paradigm. One would then go ahead and do the following in an attempt to pursue common law. Google search: Attempt to Google any product, company, or service that earlier had a marked or logoed appearance like yours in an attempt to establish whether your mark of interest exists or not.
Domain name search: Attempt searching on websites like WHOIS or domain registration websites in an attempt to ascertain whether your mark’s domain name is free or not.
Bounce social media sites: Search for people with your name or similar close variations of standard names on common social media sites like Facebook, Twitter, Instagram, and LinkedIn.
Name collision search: Conduct state business name database and roll name collision searches.
5. Consult with a Trademark Attorney
Even if you had conducted the search yourself, it would have been a first level search. It would have been better on your part if you had taken the advice of a trademark law attorney. He can advise you whether there is or not any risk and provide opinions on the registrability or otherwise of your mark.
- Your trademark attorney can even have the following arranged for you:
- Can do a rightful search in case of any potential trademark conflict, i.e., common law marks.
- You can register your mark with results.
- Anyone can register a trademark at the same time.
6. Make Your Trademark Search Results Accurate
After conducting your search, it’s important to evaluate the results carefully. If there are no conflicts, your trademark may be available for registration. However, if there are conflicting marks, you’ll need to assess whether they pose a significant risk to your trademark application. Consider the following factors:
- Similarity: Are the marks identical or just similar? Even slight variations can cause legal challenges.
- Goods and Services Class: More distinction whether goods mark or services mark more. More conflict if your mark same class as the prior mark.
- Market Presence: Even competitor mark is highly recognised, is an unpopular mark less than a typical market presence?
Trademark Strength: Powerful trademarks (Apple, Coca-Cola) will get more protection for their trademark to be awarded, and distinct trademarks allow court cases to achieve it.
Conclusion
Your trademark is a trademark search for protection for availability. Assuming you are performing the proper due trademark search for this purpose, your trademark will surely be nonblocked registered marks and distinctive. Blind as it appears, spidering web search engines, research for the attorney’s counsel, and an in-house administered effort to construct the searches step by step will get you back on track. A trademark is an investment in the future of your business, and frustration must never be exaggerated.
Trademark Availability FAQs
1.) How do I perform availability of a trademark search?
In order to search whether there exists a trademark or not, it would probably search the USPTO database through the Trademark Electronic Search System (TESS). Apart from database search and common law search, wherein you search on the internet and social networks, business directories also exist.
2.) Can you trademark a name if it is not in the USPTO database?
No, not quite. Mark is common law, but USPTO is not. Conduct a reasonable common law search by searching one, two, or three databases on the internet.
3.) Can I use an infringing trademark name?
A precise replica of current marks cannot be built in law where the mark exists in succession for the same series of business in the marketplace or the same business of service. Relief on distinctive trademarks is available.
6.) Is searching for the availability of attorney services to be employed a precondition?
But it isn’t always bad practice to avail yourself of the services of a professional trademark attorney, and secondly status quo is because they will.
They will select you also from a bog of some future bog of filing.
7.) Is there a time limit to check the availability of a trademark?
There is no time limit to check the availability of a trademark. For a quick search, it would be done within hours, and if it is a good search, particularly if it is an international mark or extensive use, it would be done within days.
If all those people who have worked so hard under your brand name did, then you would never go to court cases and get your brand well wrapped.