What is a Trademark Search?

You want to conduct a trademark search in order to determine the availability of a particular trademark for your use and federal registration.  A trademark search helps to minimize the chance of being sued for trademark infringement by someone who has rights in an identical or confusingly similar trademark.  If you hire a trademark attorney to perform the search, the attorney will issue you a legal opinion indicating whether your trademark is available and what the risks of adopting and attempting to register your trademark are likely to be.

There are basically three types of trademark searches that can be conducted.  The first is called a “common law” trademark search.  This search will reveal trademarks that are currently in use but were never registered by their owners on a federal or state level.  This search is important because trademark rights are acquired by simply using the trademark in commerce in connection with products or services.  There is no requirement that trademark owners register their marks.  Although a common law trademark search can provide you with a wealth of information, it is often the most difficult and expensive search for a trademark attorney to conduct.  If you do not have the resources to hire a trademark attorney to perform a common law trademark search on your behalf, you can at least do your own cursory common law search by utilizing Google and some of the free online business directories.

The second type of trademark search is the state trademark search.  A state trademark search will reveal trademarks that have been registered in a particular state.  All fifty states allow trademark owners to register their trademarks with the Secretary of State’s office (or other government office), which results in the owner being granted statewide rights in their marks.  Unfortunately, most state trademark registries are not yet available online for general public searching.  In addition, it can be quite time-consuming and complicated to manually conduct a search of all fifty state registries.  As you can see, it is often best to retain a trademark attorney who has ready access to various databases to properly perform your state trademark search.

The third type of trademark search is the federal trademark search.  A federal trademark search will reveal trademarks that are registered or pending in the United States Patent and Trademark Office (USPTO).  The federal trademark search is recommended for all businesses because it is relatively inexpensive and provides the most guidance as to whether a particular trademark is eligible for federal registration.  You can conduct a very basic federal trademark search yourself using the Trademark Electronic Search System (TESS).  However, please be aware that a TESS search is not a comprehensive federal trademark search and the results should not be relied upon because the TESS search will not reveal all potentially problematic trademarks.  Therefore, you should always have an experienced trademark attorney conduct a comprehensive federal trademark search prior to adopting, using, or attempting to register your mark.

In sum, it is a good idea to consult with a trademark attorney when you are ready to proceed with a common law, state, or federal trademark search.  A knowledgeable trademark attorney will help provide the security you need for successful clearance and ownership of your mark and you will be less likely to find yourself named as a defendant in a trademark infringement lawsuit