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Conduct Your Own Trademark Search Using LegalZoom

January 29, 2015Trademark Searches

Today, I am going to walk you through the process of placing and reviewing a comprehensive trademark search for a word mark in the U.S. using LegalZoom. This is more exciting than it seems. (Side note: I may be the very first trademark attorney to ever refer to a trademark search as "exciting.") If you have settled on a mark that you really, really like, you may just experience some exhilaration if the trademark search report comes back clean, paving the way for you to claim that mark as your own. When I selected Trademark Well as the name of my business, I thought it was perfect—it described the site easily for newcomers but it was also a double entendre referring to trademarking in a good manner and to a trademark resource. When my trademark search confirmed that it was available for me to adopt and use, I was excited because I could move forward and I had found my brand. I'm not alone either. Some of my clients have become quite enthusiastic upon learning that a search has come back clean. I don't even tell them to settle down. So, if you use the information in this blog post to clear your trademark and feel exhilarated and excited or just plain good, let me know by letting loose in the comment section.

Understanding the Purpose of the Search

Too many people or businesses choose a trademark and start using it without first clearing it through a comprehensive trademark search. It's a mistake that comes back to haunt a good portion of them. They get sued in federal court for trademark infringement, receive a cease and desist letter, have their trademark application refused by the U.S. Patent and Trademark Office ("USPTO"), or get served with a notice of opposition in a Trademark Trial and Appeal Board ("TTAB") proceeding. That usually means there is going to be a lot of money spent on attorneys' fees and, in all likelihood, they will end up having to change their mark after investing untold resources in the mark and after having finally attained some level of consumer recognition and momentum in the marketplace. It's not worth exposing yourself and your business to those risks when they can be avoided through a simple comprehensive trademark search.

Why a Trademark Search Is Important

On the surface, it seems like the information you can glean from a trademark search is simple and straightforward. Most people think a trademark search serves a single informational purpose: is someone else already using my proposed trademark? Admittedly, that is the primary purpose of a search. But a trademark search can tell you much more than that. It can also provide you with these additional insights and information:

  • Whether someone has filed a trademark application for a similar mark. This can be different than a situation in which someone has already acquired common law trademark rights by using a similar mark in the marketplace. Someone may have filed an intent-to-use trademark application to reserve a mark, but has not yet acquired any actual trademark rights because the mark has not yet been used, which is a requirement for the trademark application to mature into a trademark registration. Depending on where that person is in the application process, you may want to wait to see how it plays out or even file your own application so you're next in line.
  • Sometimes a search discloses trademark applications and registrations that have been filed for marks that contain one or more of the terms that make up your proposed mark. By reviewing the file histories of these applications and registrations, you can understand if the USPTO is likely to issue an office action and on what grounds. There have been times where a search has come back clean from an infringement standpoint, but the search results reveal that the client is likely to have a difficult time getting the mark registered.
  • A search can also help you ascertain the strength of your proposed mark. If the search results show that there are numerous similar marks owned by many different people, then your proposed mark will be just another trademark in a "crowded field." This means that your proposed mark will be relatively weak and your ability to enforce your trademark rights against others will be more limited.
  • A search can yield important information regarding trademark bullies and litigious parties. There are some trademark owners who oppose every trademark application that contains a particular prefix, suffix, word, etc. And even if the marks are otherwise incredibly different and even if no likelihood of confusion could reasonably be possible, the reality is that you are likely going to end up in either in an opposition proceeding or trademark lawsuit. Taking on these litigious trademark bullies, who are usually the corporate behemoths, is rarely worthwhile.

Reaching some of these less obvious insights does take a little more work, but it will provide you with a much clearer understanding of the different aspects of your proposed mark.

Clarify Your Goal(s) in Conducting the Trademark Search

Most of the time, my clients want the whole enchilada when it comes to trademark searches. They want me to review and analyze a search to identify any and all problems: infringement liability, registration issues, litigious trolls, protectability and strength issues.

But sometimes a client has a more limited purpose for conducting the search. Some clients just want to know if they can use the trademark without getting sued and don't care about applying for and registering the trademark. For example, the mark may be a tagline for a new promotional campaign that will only run for a few months (meaning the client will discontinue use long before a trademark application would ever mature into a registration). Or the client may have received a cease and desist letter or been served with a federal complaint and wants to conduct a search to evaluate a crowded field defense or to support a descriptiveness defense. Whatever the particular scenario, it is important to know what it is before ordering the search.

Ascertain the Mark and Goods for the Search

You don't need much to commission a trademark search.  In fact, you really only need two pieces of information: (1) your proposed trademark, and (2) the goods or services that you plan to provide (or are providing) under your proposed trademark. But it is important that you get these two things right because the search output is only as good as the input.

Identify the Trademark for the Search

Figure out exactly what mark you are planning to use (or are using). It seems obvious and painfully straightforward. But as trademark attorney who has handled too many searches to count, I can tell you that you'd be surprised how often a client is not crystal clear on their own trademark. Is there a space between the two words in the mark? Is the tagline under the mark part of it? If the mark has a design element, is that the final iteration of the design mark?

If the mark you actually adopt is different than the one searched, the effectiveness of the search is compromised. Granted, if the difference between the mark you searched and the one you adopt is minuscule, it may not make much of a difference in terms of the search results. But from a best practices point of view, it is best to search the exact same mark. Settle on your trademark before running the search. If you're still deciding between marks, finish deciding before moving forward with the search.

Identify the Goods and/or Services for the Search

I try to craft the identification of goods or services for a trademark search more broadly than the identification I would use for the trademark application. The reason I make it broader is because the goods or services of a third party do not have to be identical to my client's goods or services to sustain an infringement claim. As long as the goods or services are similar or related, there could be a likelihood of confusion. This does not mean that I go to the ends of the Earth to include any conceivably related good or service in the identification for the search. But if I do think of a similar or related good or service, I will include it for the search to capture potentially more relevant results. As an overly simple example, if my client only intended to sell computer keyboards under its proposed mark, I might consider including computer mice even if my client has no intention of selling mice. If someone is using the same brand for computer mice, the goods are sufficiently related to support an allegation of likelihood of confusion and, in turn, infringement.

I usually use a simple three step process to craft an identification of goods or services for the search:

  1. Ask the Client What It Is Going to Sell Under the Mark. First, I find out if the client is selling anything under the mark currently (sometimes they've jumped the gun and are already using the mark before doing the search) and add those goods or services. Then I ask the client what it intends to sell under the mark. Then I go beyond that and ask the client what goods or services it could possibly foresee itself expanding into down the road even if it has no concrete intent to provide those goods or services right now. Of course, if you are performing the search on your own behalf, then you are the client (i.e., the trademark owner) so you will just be asking yourself these questions and writing down the answers.
  2. Consult the USPTO's U.S. Acceptable Identification of Goods and Services Manual ("ID Manual").  The USPTO's ID Manual contains a list of identifications of goods and services that the USPTO has predetermined are acceptable. You can access the manual at this link: ID Manual. The ID Manual is a great resource. If you enter your proposed goods or services into the search box, it will spit out a list of of identifications that will help you with three aspects of crafting your identification. First, it will provide you with insight into how to properly word an identification for those goods. Second, by scanning the list, you will get some ideas for additional goods or services to include in your identification. And third, it will tell you what class the goods or services are categorized in. I typically do a few searches on the ID Manual and pull out the identifications that are applicable.
  3. Check the Identifications Used By the Client's Competitors. If it is immediately apparent to me who the client's competitors are in the marketplace, I will usually perform a trademark search on the USPTO's Trademark Electronic Search System ("TESS") for the competitors' trademarks and examine what identification of goods or services they have used. If the competitors' applications contain additional identifications worth including, then I add them to the identification for my search. You can access the USPTO's TESS here.

By following these three steps, you should be able to draft a proposed identification of goods and services for your search and determine the classes for those same goods and services.

Do Your Own Knockout Trademark Search First

Before dropping $299 on your LegalZoom trademark search, it is worth taking some time to conduct your own knockout trademark search. If you quickly uncover an identical mark for the same goods or services, then you will immediately know that you have a problem and your comprehensive trademark search from LegalZoom is not going to come back clean anyway. You can then make the decision to either (i) select a different trademark for the search process, or (ii) move forward knowing the risks.

What Is a Knockout Search?

Simply put, a knockout search is a quick search to see if someone else is already using your trademark. Some attorneys also refer to a knockout search as a "preliminary search." There is no set criteria for conducting a knockout trademark search, and attorneys differ and disagree on the scope of these searches. Some define a knockout search as a search of the USPTO's database only and no other sources or databases. Others consider a knockout search to be a search for only identical trademarks as opposed to highly similar ones (i.e., the search would not try to capture alternate spellings and so on). However you define a knockout search, the point is to engage in some modicum of effort to see if you can easily find out whether someone is already using your proposed trademark before spending money on an expensive comprehensive trademark search.

Personally, I consider a knockout search to be a search for the identical trademark being proposed for adoption. If I start going down the road of trying to craft complicated searches to capture every type of trademark that is potentially problematic, then two things happen. First, I end up spending a lot more time on the knockout search, and at my billable rate, the knockout search ends up becoming more expensive for my client than just ordering a comprehensive trademark search to begin with. This defeats the primary purpose of the knockout search: to save my client from spending unnecessary money on a comprehensive search. Of course, if you are doing a knockout search for yourself, this cost analysis would not apply to you. Second, I would—in essence—be attempting to perform an inferior version of the search that the professional search company would conduct. This is not my expertise. In contrast, the professional trademark search companies know exactly how to structure searches to capture trademarks that are not identical but similar in sight, sound, or meaning, such as variant spellings or corrupt spellings (e.g., quick and kwik), phonetically similar marks (e.g., waist and waste), foreign equivalents, etc. There is no reason to try to turn a knockout search into a comprehensive search. Let the search company do that.

I also search two sources when performing my knockout searches. First, I search the USPTO's database of trademark applications and registrations. Second, I do a quick Internet search using Google. In my opinion, it is worth going beyond just the USPTO's website and doing an Internet search because it is extremely quick and easy and because most serious businesses nowadays have an Internet presence.

How long do I spend on knockout searches? I usually spend between 15-30 minutes on my knockout trademark searches. Again, if you are performing the knockout search yourself, you can spend as much time on your knockout search as you're comfortable with. Similarly, if you are just beginning to do trademark searches, it may take you a little longer until it becomes second nature.

Perform a Knockout Search on the U.S. Patent and Trademark Office's Website

Go to the USPTO's TESS webpage.  Click on "Basic Word Mark Search (New User)."

Image of the search options on USPTO's TESS page

On the next page, enter your trademark in the Search Term box and click the "Submit Query" button.

TESS

After you submit your search, you will get a list of trademark applications and registrations. The first thing to pay attention to is the "Live/Dead" column at the far right. If a mark is dead, that means it is a registration that has been cancelled or an application that has gone abandoned. If you file a trademark application, the Examining Attorney assigned to your trademark application cannot cite a dead trademark against you. However, a dead mark may be noteworthy because it could indicate that the mark is still being used out in the marketplace, in which case the trademark owner owns common law rights in the mark. So if there is a dead mark directly on point, you may want to perform a Google search of the owner and mark as part of your Internet knockout search. That said, you really want to pay more attention to the live marks. If you find a live mark that is identical (or highly similar) being used in connection with identical (or highly similar) goods and services, then you have saved yourself the cost of a comprehensive search and you can start brainstorming alternative trademarks.

Perform a Knockout Search on the Internet

Poke around on the Internet. Perform a Google search—or Yahoo or Bing or all three—of your proposed trademark and take a look at the results. See if anyone else is already using your trademark. When examining the results, consider (i) whether the term is being used as a trademark (as opposed to non-trademark uses, such as use in a domain name or use of the term in body text), (ii) whether the use is limited to a different jurisdiction (is the mark only being used outside the United Sates), and (iii) how similar or dissimilar are the goods and services in the result to the goods or services that you intend to use with your mark.

***

Assuming your knockout searches come back clean, it's time to order a comprehensive trademark search.

Order the Trademark Search from LegalZoom

Now that you have determined the trademark and goods and services for the trademark search, it's time to order your trademark search. I recommend ordering the comprehensive trademark search from LegalZoom. LegalZoom offers two types of comprehensive trademark searches for the United States: (1) a Federal and State Search for $199, and (2) a Federal, State, and Common Law Search for $299. You can order a comprehensive trademark search by clicking on this link: LegalZoom's Comprehensive Trademark Searches.

Why LegalZoom?

LegalZoom is certainly not the only company out there for comprehensive trademark searches. The other two that are used often by trademark attorneys are Thomson CompuMark and Corsearch. However, comprehensive trademark searches from Thomson CompuMark and Corsearch are significantly more expensive. At the time of this blog post, a comprehensive trademark search from Thomson CompuMark runs $740 and one from Corsearch runs $745, whereas LegalZoom charges $299. And while both Thomson CompuMark and Corsearch offer some nice additional features and perhaps more thoroughness on the common law search results, a LegalZoom trademark search will usually do the job.

How to Place the Order

After you have determined your trademark and the goods and services, the next step is ordering the comprehensive trademark search from LegalZoom. This is an incredibly easy process.

First, go to LegalZoom's comprehensive trademark search page and click on the orange "Get Started" button.

LZ Screenshot Get Started

After clicking on the Get Started button, you will be taken to a page where you have to either create a LegalZoom account if this is your first time using LegalZoom or login in to your already existing LegalZoom account. After creating an account or logging in, you will be redirected to LegalZoom's quick and easy Trademark Search Questionnaire.

On the first page, simply type the trademark you want searched and click on the orange "Save and Continue" button. So, for example, if I wanted to order a trademark search for the Trademark Well trademark, my completed screen would look like this:

LZ Screen Mark

You will then be taken to the screen below to enter your goods and services. Again, as an example, I would enter the following information if I was conducting a search for the Trademark Well mark.

LZ Screenshot Services

After entering your goods and services and class numbers, you'll be taken to a summary screen where you can review the information you entered to confirm that it is correct. Then you will be taken to a screen where you can choose what type of search you want to order—a WorldScan International Search, a Federal, State, and Common Law Search, or a Federal and State Search. Assuming you are just filing in the United States, you do not need the WorldScan International Search (we'll cover international searches in a future blog post). I would recommend selecting the Federal, State, and Common Law Search. The entire purpose of a comprehensive trademark search is to clear your trademark as best you can. And with that purpose in mind, it simply does not make sense to me to forgo the common law results to save a little money when you could just as easily be liable for infringing someone's common law trademark.

LZ Screenshot Search Selection

After choosing your search package, click the orange "Continue" button. You'll be taken to a screen where you can enter your contact and payment information to complete you order.

You will receive your search about seven business days after you order it, which will consist of a bound hard copy of the search report and a CD with pdf copies of the search report. The pdf copies are particularly useful because I will email the client the pdf copy along with my analysis or opinion of the search report. If you are an attorney, we will cover how to put together a trademark availability opinion in a future blog post. (According to LegalZoom's website, it appears that LegalZoom has begun to make search report results online.)

How to Review the Trademark Search Report

There are a lot of nuances and gray areas when it comes to trademark infringement and the two elements that comprise it, priority of rights and likelihood of confusion. It would take a multi-volume practice guide to begin to adequately cover that. But I can certainly boil it down to the basics.

Priority Simplified. Simply put, whoever uses their trademark first to sell a good or service has priority. However, a party can reserve a trademark that it has not used yet by filing an intent-to-use trademark application with the USPTO. In such situations, the filing date of the intent-to-use trademark application becomes the priority date even though the owner of the application has not yet made use of the mark. Of course, if you have not yet started to use your mark and have not yet filed a trademark application, then it is likely that any result in the search report would have priority over you (unless the result is a reference to an abandoned trademark application or cancelled trademark registration that are no longer in use).

Likelihood of Confusion Simplified. There are a lot of factors that the USPTO and federal courts weigh to determine if there is a likelihood of confusion between two marks. That said, it usually comes down to two main factors: (1) how similar or dissimilar are the trademarks in terms of sight, sound, and meaning, and (2) how similar or dissimilar are the goods or services. One of the difficulties in trademark law is that there are no bright line rules, and the determination of likelihood of confusion can come down to a subjective conclusion of what is similar enough to create a likelihood of confusion and, in turn, infringement. Nevertheless, if you weigh these two factors objectively, you should be able to determine whether the search report has revealed problematic marks.

In case you are wondering, here are some of the other factors that are considered in determining likelihood of confusion: (1) the strength of the marks, (2) evidence of actual confusion, (3) similarity of marketing channels used, (4) the type of goods or services and the degree of care likely to be exercised by the purchasers, (5) defendant’s intent in selecting the mark, and (6) likelihood of expansion of product lines. These are the factors used by the Court of Appeals for the Ninth Circuit and the federal district courts that sit within the Ninth Circuit. Other circuits use similar but slightly different factors.

The Different Sections of the Trademark Search Report

When you receive the search report, you will see that it is divided into five sections: (1) Federal Results, (2) State Results, (3) Business Names Results, (4) Common Law Results, and (5) Domain Name Results. I will typically review them in this order. One reason I review them in this order is because I usually find that the Federal Results are much more thorough and comprehensive than the other sections of the search report. This means that I will already have seen some of the references in the State Results, Business Names Results, and Common Law Results in the Federal Results, which allows me to be more efficient and go through the remaining sections quicker.

Reviewing the Federal Results

When I first started out as trademark attorney, I would go page by page through an entire search report—even the massive ones. But I later realized that is overkill and not at all necessary. If you look at the table of results at the beginning of this section, you will see a quick summary that lists the trademark, class, and status. For whatever reason, there are usually a good number of results that I can eliminate just by reviewing the summary chart. You will see that some of the marks are just not even remotely similar to your proposed mark (e.g., a result for CHARLOTTE HOUNDS when your proposed mark is HARL). I cross out the marks that no reasonably sane person would think are similar. Then I circle the marks that are either identical or very similar. I then go and review the pages of the search report for the marks that are circled first because they are the ones most likely to be problematic. In other words, one of these circled marks could immediately tell me we have an infringement problem. After the circled marks, I proceed to review the marks that I have not circled and have not crossed out.

When analyzing each result, I look at four things in particular: (1) the mark, (2) the goods or services, (3) the prosecution file history, and (4) any opposition activity. Obviously, I look at the mark and goods or services to assess whether I think there is a likelihood of confusion. But I also look at the prosecution history to see if the USPTO issued any office actions in connection with the application. This is what the prosecution history looks like in one of the Federal Results:

Prosecution History LZ Search

So when I see a "Non-Final Action" or "Final Action" in the prosecution history for a similar mark, I will go to the USPTO's TESS page, enter the serial number, click on the blue TSDR button, click on the Documents tab, and review the office action. By doing this, I can gauge what kinds of office actions my client can expect to receive—i.e., whether a likelihood of confusion refusal is likely to issue based on an existing application or registration, whether a refusal is likely to issue because one or more of the terms in the mark is too descriptive, or whether identification issues might be raised by the Examining Attorney. Clients tend to appreciate receiving this extra information.

Likewise, I also look at whether there is any opposition or cancellation history in a TTAB proceeding. This is what TTAB opposition or cancellation history looks like in one of the Federal Results:

TTAB LZ Search

When I see a TTAB opposition or cancellation history listed, I go to the USPTO's Trademark Trial and Appeal Board Inquiry System ("TTABVUE"), enter the proceeding number, and review the documents on file in the opposition or cancellation. The reason I do this is because the party that decided to oppose the similar mark may be likely to oppose my client's mark too. Therefore, I will also search the opposing party in TTABVUE to get an idea of how litigious they are and whether there is a theme to their filing. For example, McDonald's tends to oppose any mark that begins MC, Apple tends to oppose any mark that begins with a lower case "i," and Red Bull tends to oppose any mark that contains the word "bull." In these situations, even if my client's mark clearly won't create a likelihood of confusion, I let the client know that if it proceeds, it will almost certainly have to deal with TTAB litigation (and maybe federal litigation).

After reviewing through the federal results, I will have a list of marks that I consider problematic because they are too similar in terms of the marks and goods or services, as well notes regarding any prosecution history or TTAB issues.

Reviewing the State Results

I go through the state results in the same manner that I go through the federal results. And usually, some of the trademark owners who filed a federal trademark application have also filed a state trademark registration.

There are a couple of differences between the federal results and the state results. First, unlike the USPTO, there is no examination process at the state level. Although it varies slightly state to state, generally speaking, a trademark owner files a trademark application with the Secretary of State, which then rubber stamps the application, thereby turning it into a registration. As a result, there is no prosecution history to look through since there are no Examining Attorneys assigned to state applications and no office actions that are issued.

Second, there is no process to oppose or cancel state trademark registrations (other than by filing a lawsuit and asking a court to do so). Therefore, there is also no opposition or cancellation history to review in the section of the search report.

Third, the description of goods and services can be a lot less detailed, making it more difficult to assess the similarity of goods or services. This may require you to further research the trademark owner and its mark if your assessment of likelihood of confusion hinges on the similarity of the good or services. This can often be done through a simple Internet search.

Reviewing the Business Name Results

The business name results are much more bareboned. The results consist of the name of the company and the state in which it was formed. There is no information about what goods or services the company is providing. Business names (i.e., company names) usually double as trade names and trademarks. Therefore, it is important to pay attention to them because the business names may give rise to common law rights that can be asserted against you.

Go through the list of business names and identify any that are identical or highly similar to your trademark. Some of these businesses may also be trademark owners of the trademark applications or registrations listed in the federal and state results. If so, then you will be able to reference the result in the federal or state section for the applicable goods or services. If not, it's your turn to play investigator again and to try to find out what you can about any business name result that you are concerned about.

If there is a result that you are concerned about and that you cannot find any further information on, there are investigators you can hire to gather additional information. However, that can be get pricey.

Also keep in mind that most businesses that are serious about there trademarks have taken the time to file a federal or state trademark application. Therefore, in terms of risk, I would say it is certainly less likely that you are going to be sued for trademark infringement by a company that did not even take the time to file a federal or state trademark application. On the other hand, I have certainly seen that happen and cannot guaranty that it won't happen. It's impossible to quantify the risk, but it is something worth keeping in mind.

Reviewing the Common Law Results

The common law results have now become synonymous with an Internet search. So in this section, you will see references to websites and articles where your proposed mark (or a similar one) has been referenced, as well as a brief excerpt of the relevant text. Like the last section, this section will require a little legwork on your part. You will have to visit the webpages and assess the use of the term in question. Sometimes—even often—the term is just being used in body text, not as a trademark. Remember, only be concerned if the term is being used as a trademark (i.e., a brand).

Like business names, use of trademark in the marketplace can give rise to common law trademark rights even without a trademark application or registration, which means you cannot be a cavalier about these results—especially if you come across a direct hit. But, again, I would say the risk of infringement is lower where the trademark owner has not bothered to file an application, which indicates a disregard for taking steps to enforce or protect the mark. However, things change over time. The owner of a common law trademark may become savvier in the years to come, filing trademark applications and seeking to enforce its common law trademark rights against junior users. Sometimes problematic common law references only turn into a problem years later.

Reviewing the Domain Name Results

In LegalZoom's trademark search reports, the domain name results are usually a simple list of domain names that consist of or include the trademark you're searching. Now, just because someone is using your proposed mark in a domain name, it does not mean they have any trademark rights in that mark because use in a domain name is not trademark use. So, you really need to visit the websites at the domain names that you are concerned about in the results list. If you don't see the mark being used somewhere on the website, then there probably is no trademark use to worry about.

Nowadays, most of my clients have already checked to see if they can register the domain name for their mark. If available, they've already registered it and if not, some scrap the mark altogether in favor of one with an available corresponding domain name.

***

Now that I have reviewed each section of the comprehensive trademark search report, I must make an assessment regarding whether I think the mark is available for adoption and use. Granted, this is not always an easy assessment. Sometimes it's easy—like when there is absolutely no mark even remotely similar to the proposed mark in the search report or when there is a direct hit for an identical mark for identical goods. But in-between those two extremes, it can be tricky. When is a mark similar enough? When are the goods or services similar enough? It helps to have a decade or more of experience with trademark searches and infringement litigation to draw on, but otherwise you will have to make the call. Put yourself in the position of the consumer and think about whether you would be confused. Put yourself in the shoes of the other trademark owner and think about whether you would be upset if a competitor adopted your proposed mark. In the end, if your the comprehensive trademark search did not come back super clean, you will have to assess the risk of proceeding and your tolerance for risk.

Next Steps After Reviewing the Trademark Search

File a Trademark Application

If your review of the search report does not reveal any problematic trademarks, then you can proceed to adopt and use your trademark. But you will also want to file a trademark application to protect your rights. This is especially true if you are not in a position to start using your trademark immediately and want to reserve the mark until you can start making use of the mark. After settling on a mark and ordering and reviewing the search report, the last thing you want to have happen is for some third party to file a trademark application for your mark before you do, which would give that third party priority and cut off your ability to use your mark. File as soon as you can.

Start Over If Necessary

On the other hand, if the search report indicates that your proposed mark likely infringes someone else's mark, then it's best to choose a new mark and start the process over from the beginning. A lot of people get too tied to a proposed mark they like and have trouble dropping it even when a search report reveals problems. But this is the best and easiest time to choose a new mark—at the beginning, before you have invested time, money, and resources into your mark and before you have built any consumer recognition in the marketplace. Don't make the mistake of proceeding with a mark that could expose you to liability for trademark infringement down the road. Just brainstorm a few new options for marks and go through the clearance and search process again until you find a mark that you like and that does not infringe.

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