When choosing to trademark a name, slogan, or logo, it is essential to conduct a trademark search and clearance. Even if you create something original, it’s possible that someone else may have already claimed it. As a business owner, it’s important to be aware of the process and steps needed to clear or search for a brand as a trademark. If not done correctly, this could lead to legal issues down the road. Therefore, before spending time and money on marketing materials, it’s important to make sure your trademark is available.
Here is what you need to know about searching or clearing a brand as a trademark.
What is a Search and Clearance a Brand as a Trademark?
A trademark search is when you scan existing trademarks to see if your proposed mark is available for use. A clearance search covers unregistered, common law marks as well. Common law is a body of law created by judicial precedent instead of legislatively. This includes state and federal case law, which can be found in online databases. After conducting a thorough search, if there are no conflicting marks, you may proceed with filing your trademark application with the United States Patent and Trademark Office (USPTO).
Many people often believe that filing your business with the Secretary of State gives you the right to use that name as a brand. However, that is not the case. In addition, it does not matter if you have registered a domain name, taken the steps to get an EIN from the IRS, or had your name developed by a marketing firm. There is no guarantee that you will be immune to infringement. The best way to protect yourself is to have an attorney perform a search.
You should also keep in mind that even if you clear your mark, someone may oppose or cancel your registration after it’s approved. To avoid these issues down the road, make sure you don’t infringe on any other marks during the clearance process- even if they aren’t registered yet! If you do use someone else’s mark, you could be liable to pay damages up to three times your profits and attorney fees. Plus, it would be a waste of time and money to file an application only to have it denied later on.
How to Conduct a Trademark Search
The best way to conduct a trademark search is through the USPTO’s Trademark Electronic Search System (TESS). Before searching TESS, you should have an idea of what kind of goods and/or services you want to use your mark for. Once you have that information, you can begin your search.
If you decide to hire an attorney or professional service such as Initiating Protection to help with your search, they will likely use TESS as their primary resource as well. Keep in mind that while TESS is incredibly thorough, nothing can replace a professional’s expertise when it comes to conducting a trademark search.
Conducting a clearance search on your own can be tricky- especially if you’re not familiar with the law or process. Hiring an experienced professional like Initiating Protection may cost more upfront but could save you time and money in the long run.
It’s important to note that even if you conduct a search and don’t find any conflicting marks, that doesn’t mean you’re in the clear. There are other ways that someone could challenge your trademark registration. This includes claiming that you’re using the mark in an infringing manner or that you registered the mark fraudulently. However, if you do your due diligence and conduct proper research, you’ll be in good shape should any challenges arise down the road.