So you have a great idea for a brand. Congratulations! But how do you know whether the mark is available?
Your first step should be doing a trademark clearance search. There are two types – a knockout search and a comprehensive search. But what is the difference? Why even do a search at all?
Trademarkia offers free online knockout search:
US law gives rights to those who actually use the mark in commerce first, whether or not they ever register. This is called a common-law trademark. If the mark is registered by the USPTO, then it is a federally-registered trademark (and you can use the ® symbol).
If you fail to do a search, you could end up using or registering a trademark only to discover after a large investment that someone else is already using that mark or something similar enough to pose a conflict. This conflict is referred to as a “likelihood of confusion” and if your mark is similar enough to a competitor’s mark to potentially confuse a consumer, then this is considered to be infringement. If you are infringing on someone else’s mark, then you would need to change your mark. This could be a very costly mistake if you’ve already invested in advertising, product packaging, and establishing your brand in the marketplace.
What is a knockout search?
A knockout search, sometimes referred to as a preliminary trademark search, is a quick search of the USPTO register to determine whether there are any identical marks for similar goods or services. This search doesn’t guarantee that the mark is available or even whether it meets the standards for registrability. But it does let you know that the mark itself is available, so you can decide whether it’s worth it to invest in a comprehensive search.
What is a comprehensive search?
While both types of searches will help clear a trademark, the comprehensive search is much more robust. The comprehensive search examines additional resources, which is important because it will capture common law usage in addition to just federally-registered trademarks.
Additionally, the comprehensive search employs legal analysis and individual thought compared to a rote check of exact terms. The comprehensive search will compare many possible variations and will check for phonetic equivalents and engage in pattern-matching to identify each important portion of the mark that may conflict with others. The attorney analyzing the search will also weigh the relatedness of the goods or services with actual evidence. You will receive a legal analysis based on the comprehensive search informing you of the known risks and forecasting the likelihood to overcome any such refusals.
By investing in a search to identify risks upfront before you take the plunge you can save yourself thousands of dollars in legal fees and rebranding down the road.