When you start planning a new brand, product, or company, it’s essential to make sure you have a unique name, or mark, so you can effectively market your product. From a legal perspective, you should also be aware of trademark laws. If you choose a mark that someone else has already been using, you risk being sued for trademark infringement. Also be careful to select a mark that is not confusingly similar to an existing mark, because this also can be grounds for trademark infringement.
So where do you start with a trademark search? You might think that you should immediately go online and search for registered trademarks with the
U.S. Patent and Trademark Office (USPTO). This would give you information about which trademarks have been registered or information on pending applications for trademarks. However, what makes a trademark search challenging is that rights to a mark can be established by legitimate use of the mark – meaning that some valid trademarks are not registered with the USPTO.
Although it’s very important to check for registered trademarks, the first step is to do some online research. Use a search engine like Google or Yahoo and try to find companies with a similar name to the one you have in mind. If someone else is using your mark, you should seriously consider choosing another one. Also try to find companies or products that are similar to your intended mark. For example, check for your mark in the plural, with the words rearranged in a different order, etc. If there is a similar mark, but not exactly the same, you may still be safe if the product is completely different from yours, or if there is no way they could be confused. Still, be cautious. If there is a mark that could be confused with yours, give it serious consideration before you invest in product marketing or branding efforts.
Next, once you’ve done a thorough search online and you think no one else is using your mark, you should search through existing trademarks and trademark applications. Go to the USPTO's
Trademark Electronic Search System (TESS), and click on "New User Form Search Basic"
. When searching TESS, follow the same guidelines as with your previous online search: check to see if the exact mark has been registered, and look for variations on the mark. Be thorough and try searching in different ways. Since finding nothing is the goal – you can’t do enough searching to ensure that your mark is unique.
It’s not necessary to consult with a lawyer when selecting or registering your mark, but it is a good idea. You’re investing time, money, and your reputation in your brand, and you don’t want to lose it later due to a trademark violation. A lawyer who specializes in trademarks can help you decide whether other trademarks are confusingly similar, can help you with a trademark search, and help you register the trademark with the USPTO.
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The Rocket Lawyer Trademark Application Worksheet is a great way to organize your trademark process so you get it right the first time! Start your Trademark Application Worksheet.