Why Search?
You are an entrepreneur! You’ve got a great new product or new service to offer. You are forming a new company or adding a new product to an existing product line. Either way, you should be thinking about trademarks and service marks for two very important reasons:
- First – is the mark you’ve selected for your product or service available for you to use? In other words, if you start selling the product using the mark you’ve selected
- Second – if the mark you’ve chosen is available for your use, is it available for federal registration? This is important because – if you can federally register the mark – you can prevent others from registering similar marks down the road.
There are two types of searches you can do to determine if your mark is available for use and registration: a knockout search and a comprehensive search. A comprehensive search, and an opinion on availability from a trademark attorney is ALWAYS recommended, but, if you are a risk taker, or want a quick answer, a FREE TrademarkShoppe knockout search might be a good place to start.
Knockout Search
A knockout search looks for identical marks already registered, or pending registration by others, in the United States Patent and Trademark Office database. The purpose of this search is to determine quickly whether another has already registered the same mark or is seeking registration for the same mark.
If the results of the knockout search indicate that the desired mark is already taken, you need not waste your time and money pursuing a mark that has been claimed by another. On the other hand, it is important to note that, even if the results of the knockout search indicate that the mark has not been registered by another, this does not mean that the mark is available for your use and registration. If you plenty of time before launching your product, you might want to just apply for federal registration and “take your chances”, but a safer, more conservative approach is to do a comprehensive search.
Comprehensive Search
A comprehensive search, as the name suggests, is a more thorough type of trademark search. Unlike a knockout search, a comprehensive search looks at:
- Federally registered marks
- Marks that are pending registration
- Common law marks, i.e., marks that are in use in commerce but are not registered
- State-registered marks
- Internet domain names
- Trade names, i.e., names of companies
Upon reviewing the findings of a comprehensive search, an experienced trademark attorney can provide a legal opinion on the probability that the desired mark is available for use and registration. This type of opinion is not possible with a knockout search alone.
Likelihood of Confusion
The legal test, both for right to use and right to register questions, is all about confusion. The trademark laws are designed to protect consumers from being confused, and buying one product when they meant to buy another, because one trademark is similar to another.
The law says this:
A mark is available for your use if it will not likely cause confusion among consumers.
A mark is available for your federal registration if it is not likely to be confused with another previously registered mark, and if its registration will not mislead or deceive consumers.
The assessment of the likelihood of confusion test is best left to an experienced trademark attorney.
