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Avoiding Accidental Infringement: A Guide To Searching for Trademarks

As a small business owner, you should ensure that your desired trademark is available before using it to avoid accidental trademark infringement. Before filing a trademark application, you should complete a trademark search on the United States Patent and Trademark Office's Trademark Electronic Search System (TESS). TESS is the USPTO's trademark database used to conduct a comprehensive search. TESS helps ensure your desired trademark does not infringe on existing trademarks.

TESS isn't the only option for checking your trademark. This article lays out several ways you can conduct a trademark search on your own and when it might make sense to get help from an attorney.

Why do I need to search for other trademarks?

In essence, trademark law is all about avoiding consumer confusion. If two businesses in the same area use the same or similar trademarks, particularly for a similar product or service, consumers may confuse the brands.

In general, first in time equals first in right in trademark law. Once a trademark is in use, that user retains certain protections from other businesses that later use the same or similar mark. This has nuances depending on whether a federal application is filed and some common law protections.

Doing a trademark search prevents you from choosing a trademark that infringes upon another's right to use the mark. Using your own unique trademark helps save you time, energy, and money.

Keep in mind that there are two levels of trademark protection.

  • For federally registered marks, the trademark owner gains protection for that mark nationwide, even if the owner is not doing business across the entire nation. This is the most accessible type of mark to avoid because you can search the U.S. Patent and Trademark Office (USPTO) website and get the results.
  • The second type of protection is common law trademark protection. Common law trademark protection encompasses everything not a part of federal registration. This is where the bulk of trademarks and the disputes that come with them exist.

Because they are not federally registered and thus not as searchable, there could be similar marks already in use that prevent you from using yours. A similar mark could be used in a market where you expect to expand, so you can avoid the headache of potential future litigation if you rebrand or change your trademark right when you find out.

What methods and resources are useful in a self-search?

If you'd like to conduct a trademark search on your own, there are several places you can start. Most searches can be completed online. Doing an initial search on your own can help conserve resources. Although there are many situations where businesses benefit from a professional trademark search.

Below are four options for conducting trademark searches:

1. USPTO website

If you visit the USPTO website, you can do free searches for federally registered marks using TESS. The trademark section will have links to the application process and information about how to search. There are a few ways to search, so rely on more than exact terms when making your determination to use a mark or not.

Federally registered trademarks are afforded nationwide use of the mark, even if the mark is not in use nationwide. Federal trademarks in the database give constructive notice to all future users. Constructive notice means you can't claim you weren't aware of the trademark.

2. Patent and Trademark Depository Libraries

If you are close to a location, you can also visit the Patent and Trademark Depository Libraries (PTDLs). There are branches in almost every state. PTDLs have paper directories of federal trademarks and online databases of registered and pending trademark registrations. PTDLs are also helpful because they have product guides and other resources to search for similar trademarks in addition to exact matches.

3. Visit your state's patent and trademark resource center

Remember that many states also have patent and trademark resource centers that help you with information about how to use the TESS system, what filing fees to expect, and other trademark basics.

States have their own state trademark database, separate from the federal trademark database. You can find this through the secretary of state website for your state. It is advisable to search your business name or trademark name in both the state and federal databases.

4. Conduct an internet search

You can also do simple internet searches of your mark and similar sounding marks. If your mark is in a product for sale, you can go to a retail site that carries similar products and search for trademarks like yours.

If your mark is a service mark, you can do the same at a site that lists those services. For example, if your trademark is for a camera, you can go to Best Buy or Google Shopping to see if there is a mark like yours.

Make sure you also check social media accounts like Facebook and Instagram.

What if I want a professional to do a trademark search for me?

You can use an online search company to run a search for you. These companies will do a robust search report for the mark you want to use, but you have to provide the classifications for them. They also will usually not analyze or interpret the report, which can be hundreds of pages long.

Professional search firms are a step up from an online search company. These firms specialize in trademark searches. They are useful to companies that expect to have a significant initial capital investment in the development of their mark. Search firms charge thousands of dollars and find registered and unregistered trademarks and similar sounding/looking marks.

While these self-searches can yield important information, they cannot give you legal advice. You may need a trademark lawyer to help determine whether your trademark is likely to infringe upon another's similar or identical trademark. A lawyer can also advise on if there may be future issues with another trademark user.

Get Legal Advice From a Trademark Attorney​

As a startup or new business, having legal protection of your intellectual property is crucial. You should contact a trademark attorney if you need help with the trademark application process, have a trademark infringement claim, or have other trade name issues. You can also have a lawyer arrange to use a search firm. Find a trademark attorney near you to get started.

See FindLaw's Trademarks section for more articles.

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