Trademark clearance searches are a crucial initial step in establishing and registering a trademark. If you think that you have created a good trademark — a word, phrase, design, logo, mark, etc. — it is essential to ensure that your proposed trademark is not already in existence and not already being used.

Under trademark law, you cannot use a trademark owned by another. This is called trademark infringement and will result in an infringement lawsuit which could result in significant civil liability. Aside from potential infringement liability, you will not be able to register your new proposed trademark with any US trademarking governmental agency. One clear rule is that a trademark cannot be registered if the trademark is the same as another trademark already registered or that is confusingly similar to one already registered.

Note that there is some nuance with respect to this rule since you CAN use a trademark that is similar to another as long as the two trademarks are used with very different and distinct types of goods and services. For example, DELTA AIRLINES can coexist with DELTA FAUCETS because they are related and associated with very different types of products. There will be little danger of consumer confusion.

So, how does one conduct a United States trademark search? As described below, trademark searching can be time-consuming and a bit of a hassle. So, often it is easier and hassle-free and not all that expensive to hire a trademark law firm to conduct your trademark search. If you want information about a trademark search, call us here at Revision Legal at 231-714-0100 or 855-473-8474.

In any event, understand that there are two levels of trademark registration in the US: federal level and State level. Trademarks are registered at the federal level by the US Patent and Trademark Office (“USPTO”). At the State level, trademarks are generally registered by the various Offices of the Secretary of State. At both levels, searchable databases are maintained that contain all of the trademarks that have been registered. Thus, one important step in conducting a trademark search is to go to the respective websites, input your proposed trademark and search the databases. See here for the USPTO search engine. The USPTO’s search engine is called TESS, which stands for Trademark Electronic Search System. For examples of State level search engines, see here for the Texas version and here for the Iowa search engine. The search engines are relatively easy to use for word and phrase trademarks but become more difficult for design and logo searches. The USPTO has a “Design Search Code Manual” that is very helpful.

One pro tip is to know the trademark class that your goods or services belong to. This will help limit your searches. But, you should not limit your trademark search to only one class; searches must be done in similar classes and any class that is designated as a coordinated class by the registration office.

The federal government also operates another database at the Patent and Trademark Resource Center. That database should also be searched.

After government databases are searched, it is time to do some additional searching on the following:

• Internet search engines using your proposed trademark and using image searching for any designs or logos — given the nature of general internet searches, it is difficult to narrow the search to classes and
• The database for internet domain names operated by the Internet Corporation for Assigned Names and Numbers

Finally, to be as thorough as possible, it may be useful to subscribe to for-pay clearance search companies that will have access to non-public databases.

Contact the Trademark Attorneys at Revision Legal For more information, contact the experienced Trademark Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.

How to Use the USPTO Trademark Search Database

The USPTO’s free online trademark search tool allows the public to search all active and inactive federal trademark registrations and applications. To conduct a meaningful search, you should use several different approaches:

• Word mark search: Enter the exact word or phrase you plan to use as your trademark and review the results. Then modify the search to use wildcard characters to catch variations and related terms.
• Design code search: If your trademark contains a design or logo element, the USPTO assigns design codes to graphical elements. Searching by design code lets you find marks with similar graphic elements even if the words differ.
• Phonetically similar marks: A mark that sounds like your proposed trademark is just as problematic as one that looks identical. The DuPont likelihood-of-confusion analysis includes “similarity in sound.” Searching for phonetic equivalents requires expertise and familiarity with how the USPTO applies that standard.

When reviewing search results, pay close attention to the status of each hit. An “ABANDONED” application may not create a conflict if no one has revived it, but an abandoned mark with substantial common law use could still cause problems. Pending applications carry their own risks because if they mature to registration, your later-filed application could be cited against them or vice versa.

Searching Beyond the USPTO Database

Federal registration is only part of the picture. U.S. trademark law recognizes common law trademark rights, which arise from actual use in commerce without registration. A business that has been using a mark in commerce — even without federal registration — has trademark rights in the geographic areas where it has been using the mark. Those unregistered rights can be enforced against a later federal registrant in certain circumstances.

A comprehensive trademark clearance search therefore also includes:

• State trademark registries in the key states where you operate or plan to operate
• Business name databases at the state level (Secretary of State records)
• Domain name WHOIS registrations
• Major social media platforms for accounts using the mark
• General internet searches for businesses using the mark in commerce

Understanding the Results: When Is a Conflict Real?

Finding a similar mark in a database search does not automatically mean your trademark is unavailable. The key question is whether there is a “likelihood of confusion” between the two marks, which is evaluated using the DuPont factors established in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357 (C.C.P.A. 1973). The most important factors are the similarity of the marks and the relatedness of the goods and services. Two marks can look very similar but coexist lawfully if they are used in completely different, unrelated markets.

Interpreting search results requires legal judgment. A trademark attorney can evaluate each potential conflict and give you an informed opinion on the risk profile — low, medium, or high — and explain what steps, if any, could mitigate the risks. That assessment is far more valuable than a raw list of similar marks that a self-directed search produces.

Trademark clearance is not a luxury — it is a prerequisite to responsible brand launch. Do not invest in brand identity, packaging, and marketing for a name that may have to change. The trademark attorneys at Revision Legal conduct thorough, multi-source trademark searches and provide written clearance opinions. Contact us at 231-714-0100 or 855-473-8474.