When it comes to choosing the right trademark, many business owners skip one critical step—checking if it's available. While this may seem like a minor issue, filing for a trademark without checking to see if it’s available can be a costly mistake. Here are some ways you can check trademark availability and avoid potential risks that may follow if you don’t.
Check the USPTO Database
In the U.S., the first place you should check is with the United States Patent and Trademark Office (USPTO). This is the country’s legislative body in charge of recording patents and trademarks, enforcing them, and reviewing cases of infringement.
To do this, they have an extensive database of registered trademarks that you can search through. You can check with them to see if your desired mark is already taken. The USPTO also publishes pending applications, so it’s important to check both their long-standing records and their pending applications before filing.
Check State Registries
You should also check your state’s trademark registry, as it may contain marks that are not listed in the USPTO database. It is possible for people to only file trademarks for their specific state. If they do, this doesn’t mean you can’t file for your trademark on the federal level and with other states. You just can’t file in the state it was already registered with. This works if you work across multiple states, but not if you are based in the same state it’s already registered with.
It’s recommended that you register with the federal registry operated by the USPTO. It offers more protections and supersedes state registrations.
Check Common Law Trademarks
A common law trademark is a type of trademark that's established through regular use in commerce. This can be common among older businesses whose lifespan date back before the trademarks system was created in October 1875. They also only span local areas, so don’t expect a common law trademark in Ohio to affect any place of business in California. In fact, one common law trademark in northern Ohio, would not affect one in southern Ohio in most instances.
This is only if you are worried about local businesses that may have a similar trademark or business to you. If you’re naming your business after your location or town, this may become more of an issue. Consult with a trademark attorney for help finding out about common law trademarks.
Check Foreign Trademark Institutions
The U.S. is not the only country that cares about trademarks and other intellectual property protection. You can conduct a search in any specific country that has a trademark office, of which there are several. One of the biggest is the European Union Intellectual Property Office (EUIPO) which contains records of trademarks from across countries that are a part of the European Union.
Why Should You Check if the Trademark is Available?
By doing the legwork upfront and checking trademark availability, you can avoid potential risks down the line. Trademark infringement isn’t always caught immediately. You can be operating for years before finding out that you're infringing on someone else’s trademark. That can leave you open to all kinds of financial and brand risks. If you are accused of trademark infringement, you are vulnerable to:
Damages based on what the victim lost to confusion with your brand
Damages based on what you’ve earned while utilizing another brand’s trademark
Cease and desists on your trademark / be barred from being able to use it
Damage to your brand
To make sure you are never accused and found guilty of trademark infringement, make sure your check to see if your trademark is available.
Consider Hiring a Professional Trademark Attorney
If you’re unsure about the availability of your desired trademark, consider hiring a professional to help with the search. Our trademark attorneys can provide more comprehensive results than you could find on your own and can also give you legal advice on how to proceed with filing your application.
We’ll make sure you’re filing the correct trademark, with all the offices you need to file with, after we do an extensive review and investigation of your intended trademark. We will do everything we can to make sure you are not guilty of trademark infringement. Contact our attorneys today.