Trademark Clearance Search

by Stephanie Dube Dwilson
A trademark search is essential to make sure you won't be sued for infringing on someone else's trademark.

A trademark search is essential to make sure you won't be sued for infringing on someone else's trademark.

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One of the toughest parts of starting a business is picking your business name; by finding the right name, you can not only promote a thriving business but also avoid many legal conflicts down the road. But before you commit to that perfect new name, you should make sure it isn't already a trademark owned by another company. A trademark is a word, phrase or symbol that identifies a business, product or service. Federal law gives the owner of a trademark the exclusive right to its use. To find out if a mark is already owned, you can conduct your own trademark clearance search or pay an online legal documentation service to do it for you.

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How to Search

To conduct your own trademark search, you should first search the Internet for your proposed business name. If any businesses that sell products or services similar to yours are using the same name, you will want to consider a different name. If this search brings up nothing, next search for federally registered trademarks at the U.S. Patent and Trademark Office website. Search for your name or similar names using the USPTO's Trademark Electronic Search System. Check each result to see if it is labeled LIVE (currently registered) or DEAD (canceled, abandoned or expired). If the trademark is LIVE, check to see if the business or product is similar to your own. If it's not similar or if nothing LIVE comes from your search, next check your state's trademark registry for similar marks.

Unregistered Marks

Even if you conduct a thorough search and find nothing, this does not prove that a similar mark doesn't exist. Many people register marks for greater protection, such as being able to sue for an infringer's profits and up to three times actual damages. But an unregistered trademark owner can still sue for actual damages. According to United States law, a person can own the right to a trademark by using the mark in commerce even if it isn't registered. This protection only extends to the geographic region where the unregistered mark is used or further if the mark is used mostly online.

Trademark Conflict

The reason you want to conduct a thorough search for similar trademarks is because a conflict can result in a lawsuit and hefty fines. A conflict can exist if your mark is confusingly similar to another mark that is already in use and your product or business is similar enough that consumers could confuse the two. In this case, you can be sued for trademark infringement and the court can order that you pay damages based on the profits you've made or even bar you from using your mark in the future. If your mark is similar to a famous trademark, you don't even have to be promoting a similar business or product. If the trademark is famous, the fact that your mark is similar is enough to subject you to a lawsuit for dilution. In these cases, you can be barred from using your own mark, but it is unlikely you will have to pay any fees or damages.

Protecting Your Own Mark

There is one other situation when you will want to conduct a trademark search, but this occurs only after you have the rights to your own trademark. After you own a trademark, you will periodically want to conduct searches online and with the USPTO for any marks similar to your own. If you see a company using a mark in a way that is confusingly similar to yours, you will need to send a cease-and-desist letter and possibly file a lawsuit. Federal trademark law requires that you protect your trademark or you may lose your rights to it under the theory of abandonment. In order to protect your trademark, you must periodically stop other businesses from using marks that are similar.