Understanding Trademark Availability

traverselegal - July 10, 2014 - Trademark Law

Here is some background information on trademark availability issues. This information is provided purely by way of background and so that you understand the process. These are the most common questions we get on trademark availability.

FAQ Trademark Availability

Q. What is a trademark availability search?

A. In general, trademark availability is a search done by a qualified trademark attorney or staff member under that attorney’s direction to identify other possible uses of the market of your proposed trademark, or words which may create customer confusion as related to your proposed trademark in your proposed industry.

Q. Do I have to get a trademark availability search before registering a trademark?

A. The answer is No, however you will be taking a significant risk that you will either not achieve registration or even if you do achieve registration, that your trademark will later be determined to be invalid or infringing on someone else’s mark.

Q. I already did a Google search and checked the trademark database, isn’t this enough?

A. It depends. Most clients do not understand trademark law well enough to come up with a different variations of your proposed mark in order to do a comprehensive search. A search typically involves variations of your proposed trademark or service mark, phonetic variations and other advanced search techniques within the trademark database.

Q. When I searched Google and/or the trademark database, I found an exact use of my proposed trademark term. Can I still register the mark?

A. This is where a qualified trademark attorney can provide real value. There is a “Delta Airlines” and a “Delta Faucet.” Both have registered trademarks in different industries. Trademark availability depends on more than just the literal use of the word. Product and service descriptions as well as international class (IC) categorizations are often important in determining whether multiple uses of a word would preclude registration.

Q. How much does a trademark availability search cost?

A. A basic trademark availability search costs $550.00 and includes a Google search and rudimentary search of the trademark database. If your company’s investment in this trademark is going to be minimal, or you have limited funds available to clear availability and register your mark, this basic $550.00 search may be appropriate. However, as your company’s investment in the trademark increases and funds become less of an issue, a trademark availability search can scale up to thousands of dollars. For instance, if your company is going to invest over $100,000.00 in marketing in order to create and develop the brand, spending more in order to ensure availability is a smart business decision.

Q. What are the variables for a trademark availability search?

A. There numerous ways to determine whether or not someone else may already be using your proposed mark related to a similar set of goods and/or services. At the basic level, the USPTO Database and a Google search provide a good starting point. However, this basic $550.00 search does not include an analysis of state databases for business filings, foreign databases in terms of company names and registered marks and a variety of other different databases which are available. If your proposed mark is going to be used globally, or in countries outside the United States, paying for a trademark availability search which examines databases outside the United States can be important. Even if your trademark is being used primarily in the United States, paying for a check of state databases can also reduce your risk of problems later. Recall that not all companies register their marks (in fact only a small percentage do) and not every company advertises on the internet. A U.S. STATE trademark availability search can reduce risk of conflicting marks later.

Q. What are the deliverables for a trademark availability search by Traverse Legal?

A. We provide an analysis of the databases you have selected for us to search and an opinion as to registerability of your proposed mark compared with the results of the databases researched. The results can never guarantee that there will not be problems but we’ll provide you a risk assessment so that you can make a business decision as to whether to proceed forward with the mark. One risk factor which is always in play includes any limitation the client places on the databases searched. What we do not look for, we certainly cannot find.

Q. If my trademark availability turns up potential problems, can I still register my mark?

A. Yes. This is a business decision which you will have to make based on our findings. Sometimes, trademarks will be filed as “intent to use” marks but ultimately are abandoned. Other companies have registered trademarks but are no longer doing business as those marks. Other companies have provided false information to the trademark office concerning their trademarks and thus are subject to a petition to cancel at a later date. Other companies simply don’t monitor or protect their marks and thus would be unlikely to send a threat letter to you later on. Regardless, our attorneys will put you in a position to make an informed decision concerning these risks.

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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by attorney Enrico Schaefer, who has more than 20 years of legal experience as a practicing Business, IP, and Technology Law litigation attorney.